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Contract between city, company determines liability for oil-splattered car

KBAK/KBFX photo

Who gets the bill? That's the hotly debated question after Alberto Moreno's car was left covered in oil after routine road maintenance on his street.

A couple days before the roadwork, a door tag was left at Moreno's home, letting him and everyone else in the area know crews would be out sometime in the following five days.

Moreno's son left his car parked on the street while he was at a doctor's appointment with his mother.

During that time, crews from Burtch Construction, the company the city hired to do the work, showed up and spray asphalt rejuvenating oil on the street and on Moreno's car.

When Moreno saw the car covered in oil spots, he immediately called the city to let officials know what happened.

He was told to call the contractor, because according to the city it was the company's problem to handle.

Moreno called the offices of Burtch Consrtuction only to be told he had to call the city.

With no one taking responsibility Eyewitness News investigated and obtained the contract between Burtch and Bakersfield to see who, if anyone, was responsible for cleaning the oil off Moreno's car.

The contract is 100 pages long and covers everything from payout to insurance requirements, but these are the parts which apply to Moreno's situation.

In the contract, there is an indemnity clause, which means the contractor relieves Bakersfield of all liability related to the project.

"It's 100 percent on the contractor," said Michael Connor, the superintendent of streets for Bakersfield.

However, the manager at Burtch disagrees and believes the contract does not specifically cover this instance.

"Unless the city shows me specifically in the contract where it says I have to clean that car, no I'm not gonna clean that car," said Brenn Burtch.

The contract states: "The Contractor shall be held responsible for any breakage. loss or damage of the City's equipment or supplies or to property owned by the City or the public through the negligence of the Contractor or his employees."

Burtch officials acknowledge this part of the contract and admits they have paid to have property restored when they "knew for a fact" it was their fault.

In this case, Burtch officials argue their employees were just doing their jobs and Moreno was the one being negligent.

"If you're given the tag and you know they're coming, probably a good idea to move your car," said Burtch. "If they tag it, I mean, come on, common sense."

Burtch is correct that Moreno did receive a notice of the roadwork that reads, "On the day work is to be done you will be requested to remove your vehicle from the street."

But the very next sentence on the tag reads, "If it cannot be moved we will skip that area around the vehicle."

According to Connor, the tag doesn't suggest leaving your car on the street is at the owner's risk and that the words "we will skip that area around the vehicle" means no damage will be done to your vehicle.

"The contractors themselves are supposed to be far enough away and slow down so overspray doesn't get on the cars," Connor said.

Because overspray did get on Moreno's car, Connor believes Burtch should pay to have it removed.

In the end, all of this only determines liability, which in this case means if Moreno wanted to take the case to small claims court, the case would need to be against Burtch, because they exclusively hold liability.

Liability and fault are two vastly different things, however, so while Burtch may be liable under the contract, it would be for a judge or jury to determine if they are at fault.

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