2006-Ohio-366
No. 2005-09383-AD.Court of Claims of Ohio.
Filed January 18, 2006.
Lori D. Cramer, 1165 Pump Station Road S.E., Sugar Grove, Ohio 43155, Plaintiff, Pro se.
Gordon Proctor, Director, Department of Transportation, 1980 West Broad Street, Columbus, Ohio 43223, for Defendant.
MEMORANDUM DECISION {¶ 1} Plaintiff, Lori D. Cramer, stated she was traveling on US Route 33 in Fairfield County on March 28, 2005, at about 8:00 a.m., when she drove her Toyota 4 Runner under an overpass spanning the roadway and “heard a loud sound on the roof,” of the vehicle. Plaintiff further stated that immediately after she heard the sound on the roof of her vehicle, she stopped the vehicle and inspected it for damage, but, “did not notice anything unusal at that time” [sic]. Plaintiff noted the overpass she drove under, described as Tarkiln Road, was under construction on March 28, 2005. Plaintiff related, “[a] few days later, my husband informed me there was dried concrete on the passenger side of the roof of my car.” Plaintiff maintained approximately two cups of dried concrete had adhered to the top and back side of her vehicle.
{¶ 2} After discovering the concrete damage to her vehicle, plaintiff contacted defendant, Department of Transportation (“DOT”), in an attempt to negotiate a settlement for the cost of her automotive repair. Plaintiff contended not only did her Toyota 4 Runner need to have the dried concrete removed from the body, but the vehicle required a new paint job due to scratches left by the falling concrete. Plaintiff explained she was advised by a DOT representative to pursue her damage claim directly against Smith Johnson Construction Company (“Smith Johnson”), who were engaged by DOT to perform the construction work on the bridge overpass spanning US Route 33. Smith Johnson agreed to reimburse plaintiff for the cost of removing the dried concrete from her vehicle, but apparently refused to pay for the repainting of plaintiff’s Toyota 4 Runner. Consequently, plaintiff filed this complaint against DOT, the supervisor of the US Route 33 construction project, to recover the cost of repainting her vehicle and filing fees. The filing fee was paid. Total damages sought in this claim amount to $627.07.
{¶ 3} Defendant denied any liability in this matter. Defendant explained the bridge overpass area where plaintiff’s property damage occurred was within a roadway construction zone under the control of DOT’s contractor, Smith Johnson. Defendant asserted Smith Johnson, by contractual agreement, assumed responsibility for maintaining the bridges and roadway within the construction zone. Therefore, DOT argued Smith Johnson is the proper party defendant in this action. Defendant implied all duties, such as the duty to inspect, the duty to warn, the duty to maintain, and the duty to repair, were delegated when an independent contractor takes control over a particular section of roadway including bridges.
{¶ 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. DOT may bear liability for the negligent acts of an independent contractor charged with roadway construction. See Cowell v. Ohio Department of Transportation, 2003-09343-AD, 2004-Ohio-151, affirmed jud Slagle v. Ohio Dept. of Transp., 2003-10899-AD, 2004-Ohio-906 Harchalk v. Ohio Dept. of Transp., 2004-08979-AD, 2005-Ohio-1242.
{¶ 5} Defendant was under a duty 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.
{¶ 6} However, 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 to render the highway free from an unreasonable risk of harm for 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.
{¶ 7} In the instant claim, sufficient evidence was presented to show a known hazardous condition was deposited on the roadway and neither DOT nor its agents corrected the condition. Plaintiff has proven her damage was caused by negligent acts or omissions on the part of defendant’s agents. Therefore, defendant is liable to plaintiff for the damage claimed plus filing fees.
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 plaintiff in the amount of $627.07, which includes the filing fee. Court costs are assessed against defendant. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.