2007-Ohio-1618

JOHN D. ALBERT, Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION, Defendant.

No. 2006-07287-AD.Court of Claims of Ohio.
February 16, 2007.

MEMORANDUM DECISION

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{¶ 1} On October 1, 2006, at approximately 7:30 p.m., plaintiff, John D. Albert, was traveling on State Route 250 in Sandusky through a construction zone when his automobile struck a raised manhole cover causing tire and rim damage. The roadway area through the construction zone had been milled in preparation for repavement and numerous existing manhole covers were left higher than the roadway surface due to the milling process. Plaintiff filed this complaint against defendant, Department of Transportation (“DOT”), alleging the property damage to his vehicle was the result of maintaining a hazardous roadway condition through the State Route 250 construction zone. Plaintiff seeks damages in the amount of $570.28, for replacement parts and related repair expenses. The filing fee was paid.

{¶ 2} Defendant denied any liability in this matter. Defendant explained plaintiffs property damage incident occurred on a roadway construction area under the control of DOT’s contractor, Erie Blacktop, Inc. (“Erie”). Defendant asserted Erie, by contractual agreement, assumed the responsibility for maintaining the roadway within the construction zone. Therefore, DOT implied all duties, such as the duty to inspect, the duty to warn, and any maintenance duties were delegated when an independent contractor takes control over a particular section of roadway. Erie was charged with conducting the roadway paving operation in accordance with DOT specifications. Defendant retained a Project Engineer at the construction site who recorded a Daily Diary Report.

{¶ 3} Defendant submitted statements from Erie employee, James L. Kromer, regarding the repavement on State Route 250. Kromer recorded, “Erie Blacktop is always very careful in maintaining the construction zone pursuant to ODOT specifications.” Kromer further recorded, “[a]ll entrances to the construction zone are clearly marked pursuant to ODOT specifications and are continuously monitored by ODOT inspectors.” Kromer suggested plaintiff was driving his car in an unsafe manner for roadway conditions presented by the milled surface area.

{¶ 4} Defendant has the duty to maintain its highway in a reasonably safe condition for the motoring public. Knickel v. Ohio Department of Transportation (1976), 49 Ohio App. 2d 335. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723. The duty of DOT to maintain the roadway in a safe drivable condition is not delegable to an independent contractor involved in roadway construction.

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DOT may bear liability for the negligent acts of an independent contractor charged with roadway construction. Cowell v. Ohio Department of Transportation (2004), 2003-09343-AD, jud, 2004-Ohio-151. Despite defendant’s contention that DOT did not owe any duty in regard to the construction project, defendant was charged with duties to inspect the construction site and correct any known deficiencies in connection with particular construction work. See Roadway Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. No. 00AP-1119, 2001 Ohio App. LEXIS 2854. No evidence other than plaintiffs assertion has been produced to show the height variations between the milled roadway surface and the manhole covers presented particularly hazardous conditions.

{¶ 5} For plaintiff to prevail on a claim of negligence, he must prove, by a preponderance of the evidence, that defendant owed him a duty, that it breached that duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy Company, Inc. 99 Ohio St. 3d 79, 81, 2003-Ohio-2573, ¶ 8 citing Menifee v. Ohio Welding Products, Inc.
(1984), 15 Ohio Misc.3d 75, 77. Plaintiff has the burden of proving, by a preponderance of the evidence, that he suffered a loss and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio State University (1977), 76-0368-AD. However, “[i]t is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain such burden.” Paragraph three of the syllabus in Steven v. Indus. Comm.
(1945), 145 Ohio St. 198, approved and followed. This court, as trier of fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51. Defendant professed liability cannot be established when requisite notice of damage-causing conditions cannot be proven. Generally, defendant is only liable for roadway conditions of which it has notice, but fails to correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1. However, proof of notice of a dangerous condition is not necessary when defendant’s own agents actively cause such condition, as it appears to be

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the situation in the instant matter. See Bello v. City of Cleveland
(1922), 106 Ohio St. 94, at paragraph one of the syllabus; Sexton v. Ohio Department of Transportation (1996), 94-13861. However, evidence has not shown defendant’s agents created a hazardous condition by milling the roadway surface in accordance with DOT specifications. Furthermore, evidence has been presented to establish plaintiff was notified about the pavement conditions and was responsible for taking some driving precautions based on road conditions.

{¶ 6} In order to find liability for a damage claim occurring in a construction area, the court must look at the totality of the circumstances to determine whether DOT acted in a manner so as to render the highway free from an unreasonable risk of harm by the traveling public. Feichtner v. Ohio Dept. of Transp. (1995), 114 Ohio App. 3d 346. In fact the duty to render the highway free from unreasonable risk of harm is the precise duty owed by DOT to the traveling public under both normal traffic conditions and during highway construction projects. See e.g. White v. Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, 42 Rhodus, supra at 729; Feichtner, supra, at 354. In the instant claim, plaintiff has failed to introduce sufficient evidence to prove defendant or its agents maintained a known hazardous roadway condition. Plaintiff failed to prove that his property damage was connected to any conduct under the control of defendant, defendant was negligent in maintaining the construction area, or that there was any negligence on the part of defendant or its agents. Taylor v. Transportation Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. Consequently, plaintiffs claim is denied.

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ENTRY OF ADMINISTRATIVE DETERMINATION
Having considered all the evidence in the claim file and, for the reasons set forth in the memorandum decision filed concurrently herewith, judgment is rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.

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