[Cite as McIntosh v. Ohio Dept. of Transp., 2020-Ohio-2841.]


DANIEL M. MCINTOSH                                    Case No. 2019-01008AD

       Plaintiff                                      Deputy Clerk Daniel R. Borchert

       v.                                             MEMORANDUM DECISION

OHIO DEPARTMENT OF
TRANSPORTATION, et al

       Defendant



        {¶1}    Daniel M. Mcintosh (“plaintiff”) filed this claim against the Ohio Department
of Transportation (“ODOT”), to recover damages which occurred when his 2015 GMC
Terrain was struck by debris falling out of the top opening of an ODOT dump truck on
September 3, 2019, while traveling North on US 68 in Clark County, Ohio. As a result,
Plaintiff’s vehicle sustained damages in the amount of $4,889.63. Plaintiff submitted the
$25.00 filing fee with the form complaint.
        {¶2}    Generally, to prevail on a negligence claim, plaintiff must show: (1)
defendant owed him a duty; (2) defendant breached that duty; and (3) defendant’s
breach of the duty proximately caused plaintiff’s injury.               Armstrong v. Best Buy
Company, Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 8 citing Menifee
v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). If both
plaintiff and a defendant engage in negligent conduct, a plaintiff may recover only if his
contributory negligence is equal or less than the defendant’s negligence. Simmers v.
Bentley Construction Co., 64 Ohio St.3d 642, 646, 1992-Ohio-42, 597 N.E.2d 504.
        {¶3}    In the Investigation Report, ODOT indicates that the incident involving
plaintiff’s vehicle occurred on US 68 North in Clark County near mile marker 5.0.
Additionally, the defendants admit liability as the evidence shows an ODOT truck was
involved. However, the defendants claim that plaintiff was 50 percent contributorily
negligent for following too close behind the ODOT truck and offers the photo plaintiff
Case No. 2019-01008AD                        -2-                 MEMORANDUM DECISION


submitted with his complaint as evidence of plaintiff’s negligent travelling distance. Due
to this alleged contributory negligence, the defendants request the court reduce the
damage award to $2,445.00 to reflect plaintiff’s 50 percent liability.
       {¶4}   In response, plaintiff asserts the photo was not taken during the spillage
but, after the fact, was taken while both the truck and plaintiff were stopped at a traffic
light whereby plaintiff got close enough to capture the identity of the truck, as well as the
contents of the unsafe load visibly continuing to spill over the top opening of the ODOT
truck. R.C. 4513.31 (A)&(B) in pertinent part states:
       “(A) No vehicle shall be driven or moved on any highway unless the vehicle is so
       constructed, loaded, or covered as to prevent any of its load from dropping,
       sifting, leaking, or otherwise escaping therefrom . . .
       (B) Except for a farm vehicle used to transport agricultural produce or agricultural
       production materials or a rubbish vehicle in the process of acquiring its load, no
       vehicle loaded with garbage, swill, cans, bottles, waste paper, ashes, refuse,
       trash, rubbish, waste, wire, paper, cartons, boxes, glass, solid waste, or any
       other material of an unsanitary nature that is susceptible to blowing or bouncing
       from a moving vehicle shall be driven or moved on any highway unless the load
       is covered with a sufficient cover to prevent the load or any part of the load from
       spilling onto the highway.”
       {¶5}   Additionally, plaintiff alleges, in his complaint, there was an assured clear
distance between the vehicle and the ODOT dump truck, but coming into contact with
the spilled load was not safely preventable.
       {¶6}   Having considered all the evidence in the claim file, the court finds the
defendant was negligent and it is more likely than not that plaintiff was not contributorily
negligent.
       {¶7}   Therefore, judgment is rendered in favor of plaintiff in the amount of
$4,889.63, plus $25.00 for reimbursement of the filing fee pursuant to the holding in
Case No. 2019-01008AD                           -3-              MEMORANDUM DECISION


Bailey v. Ohio Department of Rehabilitation and Correction, 62 Ohio Misc.2d 19, 587
N.E.2d 990 (Ct. of Cl. 1990).




DANIEL M. MCINTOSH                               Case No. 2019-01008AD

         Plaintiff                               Deputy Clerk Daniel R. Borchert

         v.                                      ENTRY OF ADMINISTRATIVE
                                                 DETERMINATION
OHIO DEPARTMENT OF
TRANSPORTATION, et al

         Defendant

          {¶8}      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 the plaintiff in the amount of $4,914.63, which includes reimbursement of the
$25.00 filing fee. Court costs are assessed against defendant.




                                               DANIEL R. BORCHERT
                                               Deputy Clerk

Filed 3/13/20
Sent to S.C. reporter 5/7/20
