Howard E. Krauskopf, Attorney at Law, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.


The claimants insured the Harman Church of the Brethren located in
Harman, Randolph
County, West Virginia. On or about October 26, 1977, two juveniles who
were being confined
at the West Virginia Children's Home in Elkins, West Virginia, left the
Home to run away. While
travelling to Bluefield, West Virginia, they entered the Harman Church
of the Brethren and
allegedly started a fire which destroyed the Church. Claimants filed
this claim for the loss of the
Church in the amount of $30,648.11.
At the hearing, a motion to amend the style of the claim in the name of
the Department of
Human Services as one of the respondents was sustained by the Court. The
claim was submitted
upon the pleadings and two depositions.

The deposition of Robert Byrd, one of the juveniles involved in the
incident, revealed that he
and two other juveniles, all of whom were wards of the West Virginia
Children's Home in Elkins,
left the Home on the date in question riding bicycles which one of the
juveniles had taken from a
yard. They rode the bicycles out of Elkins. One of the juveniles
separated to proceed to
Huttonsville, West Virginia while Robert Byrd and the other juvenile
proceeded on another road
with the intentions of travelling to Bluefield, West Virginia. The two
boys abandoned the bicycles
and hitchhiked with a trucker who dropped them off on a road about one
mile from the Church.
At the time, the boys did not know where they were so they walked along
the road. They came
upon the Church and "went in the church for the collection money." The
boys lit candles in the
Church as it was dark. At this point, Robert Byrd stated that he does
not remember what
happened until he was back on the road, heard fire engines, and looked
back to see "black and
red smoke all over the place." He could not remember the facts
surrounding the cause of the fire.
The boys were then picked up by a woman from the West Virginia
Children's Home. She took
the boys back to the Home.

Robert Byrd indicated that he had been confined at the Children's Home
for approximately
two and one-half weeks prior to the date of the incident. Previous to
this confinement, he had
been treated while a patient of Lakin State Hospital during the spring
or summer, 1977. He
stated that he went freely to and from the Children's Home as did the
other children. The
personnel at the Home did not prevent the children from coming and going.

The testimony of Audrey K. Byrd revealed that her son, Robert Byrd, was
first placed in
Lakin State Hospital by the Mercer County Circuit Court on Arson 1
charges. He was released
to his parents and the Department of Welfare. He was then placed in the
West Virginia
Children's Home at Elkins. She had not visited the Home until after the
Church was burned.

Claimants allege that the respondents negligently and recklessly placed
Robert C. Byrd into an
institution which did not have the proper facilities to prevent escape
and recurrence of past

The record in this claim does not substantiate the allegation of
knowledge on the part of the
personnel in charge of the West Virginia Children's Home of any
propensity on the part of
Robert to set fires or which would alert them to any behavior different
from the other children
confined at the Home. There is, in fact, no proof as to how the Church
burned down or who set
the fire as the testimony of Robert Byrd is that he did not set the fire
nor did he know how the
fire started.

This Court has previously denied a claim wherein juveniles burned a
barn while wards of Sugar
Creek Children's Center as the record was devoid of any negligence on
the part of the
respondent. Stemple vs. Dept. of Welfare, 13 Ct.Cl. 94 (1979). A
complete review of case law
in escape claims wherein property damage resulted from acts of the
escapees is provided in the
opinion of Tyre vs. Dept. of Corrections, 12 Ct.Cl. 263 (1979). This
opinion concludes that
each claim must be taken on its own set of facts. The facts herein do
not reveal a basis upon
which the Court may find negligence on the part of the respondents.

In view of the above, the Court is of the opinion to and does disallow
the claim.
Claim disallowed.