Evans v. Department of Highways

Sometime in mid-July of 1980, claimant Nellie Evans was *4operating her 1976 Cadillac Coupe DeVille on W. Va. Route 10 north from Logan to Mitchell Heights when traffic was stopped for 1% hours. During that time, the claimant ran her car’s engine at certain intervals to operate the air conditioner because of the intense heat. Finally, the vehicle overheated, and the antifreeze boiled out. Claimant incurred an expense of $16.44 for the replacement of the radiator and thermostat.

The following month, along the same stretch of highway, the claimant was again stopped in traffic, that time, for 2% hours. Ms. Evans testified that a flagman was present on both occasions, and that the temperature was 100° or more. The car once again overheated, resulting in a transmission repair bill of $400.67. Claimant seeks to recover a total of $462.11 for damage to her vehicle allegedly resulting from respondent’s traffic control on West Virginia Route 10.

Testifying on behalf of the respondent was Ludrus Gore, a blacktop inspector who was on the Route 10 project in Logan County during the months involved here. Mr. Gore stated that an independent contractor, State Construction, was laying the blacktop on that particular project, and that the flagmen posted in the area were employed by State Construction. The only employees of the Department of Highways at the site were Mr. Gore and another inspector.

It is clear from the record in this case that negligence on the part of the respondent has not been established. State Construction was an independent contractor, and this Court has held that “the respondent may not be held accountable for the contractor’s negligent acts.” Safeco Insurance Company v. Department of Highways, 9 Ct.Cl. 28 (1971). In another decision by this Court, involving a flagman employed by an independent contractor, the Court found that the respondent could not be held liable for the negligence, if any, of the flagman. R. H. Bowman Distributing Co., Inc. v. Department of Highways, 12 Ct.Cl. 156 (1978). Accordingly, this claim must be denied.

Claim disallowed.