593 N.E.2d 503
No. 89-08863.Court of Claims of Ohio.
Decided December 14, 1990.
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Frank W. Porter, Jr., for plaintiffs.
Anthony J. Celebrezze, Jr., Attorney General, and Teri Jo Ravetto, Assistant Attorney General, for defendant.
FRED J. SHOEMAKER, Judge.
This matter arose out of an auto accident that occurred on June 30, 1987. On that date a pickup truck driven by plaintiff, Teresa R. Brown, was traveling eastbound on State Route 681 (hereinafter “S.R. 681”). At approximately one-half mile east of mile post nine, Ms. Brown lost control of her vehicle which eventually struck a tree.
The issues to be decided in this case are whether the Ohio Department of Transportation (hereinafter “ODOT”) negligently maintained the portion of S.R. 681 where this accident occurred and whether ODOT was negligent in not posting signs to warn motorists of a narrow bridge or a one-lane bridge.
Brown contends that the portion of S.R. 681 in question is a bridge and it should have been posted as a one-lane bridge or a narrow bridge. Brown further contends that the berm was not properly maintained and that, when a sudden emergency forced her to use the berm, its deteriorated condition caused her to lose control of her vehicle.
ODOT maintains that Brown left the roadway well before the culvert area and that the existence of a hole on the berm of the culvert was not a factor in this accident. ODOT further contends that there was no sudden emergency and the accident was caused by driver error. ODOT also asserts that the structure in question is not a bridge, but is a culvert and it was properly erected with all appropriate signs in place.
S.R. 681 is a narrow winding road located in southern Ohio. The portion of S.R. 681 at issue before the court consists of a three-hundred-foot straightaway. The court finds that the structure at issue is a box culvert and not a bridge. The roadway width is eighteen feet four inches prior to the culvert and narrows to sixteen feet two inches on the surface of the culvert. The eastbound lane, that which Brown was traveling in, is narrower than the westbound lane. S.R. 681 was last resurfaced in 1982 and new edge lines were painted just a few weeks prior to the accident.
Brown was traveling home from Ohio University where she worked as a librarian. Brown had frequently driven S.R. 681.
In order to prevail in this action, plaintiffs have the burden to prove, by a preponderance of the evidence, that ODOT had the duty to maintain this section of the roadway, that the duty was breached, and the breach was a
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proximate cause of the accident. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467; DiGildo v. Caponi (1962), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732.
The testimony of the witnesses provided insight to the respective parties’ divergent viewpoints as to how the accident occurred. Under Ohio law, where there is a conflict in the testimony on any subject, the question is one for the trier of the facts. See McQueen v. Goldey (1984), 20 Ohio App.3d 41, 20 OBR 44, 484 N.E.2d 712; Barnett v. Hills (App. 1947), 50 Ohio Law Abs. 208, 79 N.E.2d 691; and 44 Ohio Jurisprudence 3d (1983) 375, Evidence and Witnesses, Section 977. The court has duly weighed and considered the testimony of each witness in making the following determinations.
The court finds that the testimony of Trooper Dean was accurate in that Brown left the roadway well before the culvert and hit the headwall straight on. Therefore, the holes on the berm were not a proximate cause of the accident. Rather, driver error was the proximate cause of the accident.
Plaintiffs also allege that ODOT failed to erect warning signs warning motorists that this culvert was a one-lane bridge or, in the alternative, a narrow bridge.
ODOT is statutorily required to adopt and utilize a manual and specifications for a uniform system of traffic control devices. R.C. 4511.09 and Ohio Manual of Traffic Control Devices (hereinafter “Manual”).
R.C. 4511.01 defines “traffic control devices” as “signs, signals, markings, and devices placed or erected by authority of a public body or official having jurisdiction for the purpose of regulating, warning or guiding traffic, including signs denoting names of streets and highways.” The placement and maintenance of traffic control devices is governed by R.C. 4511.10, which provides: “The department of transportation may place and maintain traffic control devices, conforming to its manual and specifications, upon all state highways as are necessary to indicate and to carry out sections 4511.01 to 4511.78 and 4511.99 of the Revised Code, or to regulate, warn, or guide traffic.”
Accordingly, ODOT is empowered to and required to place signs, where necessary. The signs must be in compliance with the Manual to control traffic and warn the motoring public of dangerous areas.
Plaintiffs allege a “narrow bridge” or “a one-lane bridge” sign should have been placed prior to the culvert in question. The term “bridge” is defined in R.C. 5501.47(B)(1)(c), which states: “Bridge means any structure of ten feet or more clear span or ten feet or more in diameter on, above, or below a highway, including structures upon which railroad locomotives or cars may
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travel.” Plaintiffs argued that it is the width of the structure that should be considered, not the length of the bridge. However, there is a safety difference attributable to the length of the bridge since vehicles could travel over a shorter structure at a quicker speed. The court finds that confusion would result to motorists passing over this culvert after seeing a one-lane or narrow bridge sign since no structure commonly recognized as a bridge is evident.
It is important to have uniformity in the placement of warning signs; otherwise the motorist would not know what to expect. Too many signs would do a disservice to motorists, and “tend to breed disrespect for all signs.” Section 2M-1 of the Manual.
From a review of the testimony, exhibits and briefs submitted, the court is convinced that ODOT acted in conformance with the Manual. Pierce v. Ohio Dept. of Transp. (1985), 23 Ohio App.3d 124, 23 OBR 235, 491 N.E.2d 729.
Section 2M-3 of the Manual states:
“Since warning signs are primarily for the protection of the driver who is unacquainted with the road, it is very important that care be given to their locations.”
Plaintiffs have failed to prove by a preponderance of the evidence that ODOT was negligent in not erecting a one-lane or narrow bridge sign. Additionally, even if ODOT had breached its duty of not creating warning signs, this breach would not have been the proximate cause of the accident. As stated before, driver error was the proximate cause of the accident.
Assuming, arguendo, that this court had determined that defendant was negligent, the court further finds that any breach by defendant was less of a causative factor than was plaintiff’s own negligence.
Under the comparative negligence statute, R.C. 2315.19, the inattentiveness of plaintiff must be weighed against any negligence of defendant. The general nature of contributory negligence has been defined in the following manner:
“Negligence and contributory negligence are governed by the same basic rules. They are both measured by the same standard — the failure to exercise ordinary care. It has been said that contributory negligence is a matter of some fault or departure from the standard of conduct of the reasonable man, however unaware, unwilling, or even protesting the injured party may have been. Contributory negligence is defined to be such an act or omission on the part of a plaintiff, amounting to a want of ordinary care as, concurring or cooperating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of. It is the want of ordinary care by a person injured by the negligence of another, concurring with such negligence,
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and thus contributing to the injury as a proximate cause.” (Citations omitted.) 70 Ohio Jurisprudence 3d (1986) 144-145, Negligence, Section 65.
In view of the above, assuming defendant was negligent, the court finds that the negligence attributable to the plaintiff far exceeds the percentage of negligence attributable to the defendant. Therefore, defendant would not be found liable under these circumstances.
The burden fell upon plaintiff to establish that defendant’s actionable negligence was greater than her own and that defendant’s negligence proximately caused her injury. In view of the above, the court concludes that plaintiff failed to carry this burden by a preponderance of the evidence and it follows defendant is entitled to judgment.
Judgment for defendant.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.