[Cite as Harper v. Ohio Dept. of Transp., 2010-Ohio-6187.]

                                      Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us




GLORIA HARPER

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-01069-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On November 10, 2009, at approximately 12:48 p.m., plaintiff, Gloria
Harper, was traveling south on Interstate 75 “approaching exit 199 Wales Rd. in
Perrysburg, Ohio,” when her 2006 Chrysler Town and Country van struck an orange
traffic control barrel damaging the front bumper on the vehicle. Before impact, plaintiff
recalled she saw the “orange barrel flying across the highway near the ground.” Plaintiff
related “I didn’t see what caused the orange barrel to fly across the highway.” Plaintiff
implied the damage to her van was proximately caused by negligence on the part of
defendant, Department of Transportation (ODOT), in failing to maintain the roadway
free of hazardous debris conditions. Plaintiff filed this complaint seeking to recover
damages in the amount of $765.08, the estimated cost of vehicle repair. The filing fee
was paid.
        {¶ 2} With her complaint plaintiff submitted a copy of a “Traffic Crash Report”
compiled by an officer (David M. Buck) of the Northwood Police Department who
investigated the November 10, 2009 property damage incident.                  According to
information in the “Traffic Crash Report,” plaintiff indicated the orange barrel was
propelled into her lane of travel when the barrel was hit by a semi truck “causing it to
move across the road.” In the “Traffic Crash Report,” Officer Buck recorded that plaintiff
maintained the barrel that her vehicle struck “may have been defective and wanted the
company who owns the barrel to pay for” the damages to her van. Officer Buck noted
plaintiff “then stated well maybe the truck didn’t hit the barrel and the company didn’t set
them up right.”
       {¶ 3} Defendant explained that the roadway area where plaintiff’s incident
occurred was within the limits of a working construction project under the control of
ODOT contractor, Posen Construction, Inc. (Posen). Defendant advised the particular
construction project “dealt with grading, draining, paving with asphalt concrete and by
rehabilitating three structures on I-75 in Wood County.” According to defendant, the
construction project “started at county milepost 32.68 and ended at county milepost
33.58” on Interstate 75 and plaintiff’s damage incident occurred “near county milepost
32.88,” which is located within the project limits. Defendant asserted that this particular
construction project was under the control of Posen and consequently ODOT had no
responsibility for any damage or mishap on the roadway within the construction project
limits. Defendant argued that Posen, by contractual agreement, was responsible for
maintaining the roadway within the construction zone. Therefore, ODOT contended that
Posen is the proper party defendant in this action. Defendant implied that all duties
such as the duty to inspect, the duty to warn, the duty to maintain, and the duty to repair
defects were delegated when an independent contractor takes control over a particular
section of roadway. Furthermore, defendant contended that plaintiff failed to introduce
sufficient evidence to prove her damage was proximately caused by roadway conditions
created by ODOT or its contractors. All construction work was to be performed in
accordance with ODOT requirements and specifications and subject to ODOT approval.
       {¶ 4} For plaintiff to prevail on a claim of negligence, she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her injuries.        Armstrong v. Best Buy
Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding
Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff
has the burden of proving, by a preponderance of the evidence, that she 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, 30 O.O. 415, 61 N.E. 2d 198, approved and followed.
      {¶ 5} Defendant has the duty to maintain its highways in a reasonably safe
condition for the motoring public. Knickel v. Ohio Department of Transportation (1976),
49 Ohio App. 2d 335, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an
insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996),
112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67
Ohio App. 3d 723, 588 N.E. 2d 864. The duty of ODOT to maintain the roadway in a
safe drivable condition is not delegable to an independent contractor involved in
roadway construction. ODOT may bear liability for the negligent acts of an independent
contractor charged with roadway construction.          Cowell v. Ohio Department of
Transportation, Ct. of Cl. No. 2003-09343-AD, jud, 2004-Ohio-151. Despite defendant’s
contentions that ODOT 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 the particular construction work. See Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
      {¶ 6} Alternatively, defendant denied that neither ODOT nor Posen had any
notice “of the construction barrel on I-75 prior to plaintiff’s” property damage event,
Defendant advised that no calls or complaints were received from other motorists
regarding a displaced barrel despite the fact that the particular section of Interstate 75
“has an average daily traffic count of between 49,630 and 61,970 vehicles.” Defendant
contended plaintiff failed to offer any evidence to establish her damage was attributable
to any conduct on either the part of ODOT or Posen. Defendant further contended
plaintiff failed to produce any evidence to prove the construction area was negligently
maintained.
      {¶ 7} 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
ODOT 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, 683 N.E. 2d 112.        In fact, the duty to render the highway free from an
unreasonable risk of harm is the precise duty owed by ODOT to the traveling public
under both normal traffic and during highway construction projects. See e.g. White v.
Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, 42, 564 N.E. 2d 462.
        {¶ 8} Ordinarily to prove a breach of the duty to maintain the highways, plaintiff
must prove, by a preponderance of the evidence, that defendant had actual or
constructive notice of the precise condition or defect alleged to have caused the
accident.   McClellan v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388.
Defendant is only liable for roadway conditions of which it has notice, but fails to
reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR
64, 507 N.E. 2d 1179.       However, proof of notice of a dangerous condition is not
necessary when defendant’s own agents actively cause such condition. Bello v. City of
Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the syllabus;
Sexton v. Ohio Department of Transportation (1996), 94-13861. There is no evidence
to show that any construction activity caused the barrel to be displaced.
        {¶ 9} Defendant has contended plaintiff did not offer evidence to prove her
damage was caused by conduct attributable to either ODOT or Posen.              Defendant
asserted the barrel plaintiff’s van struck “was displaced by a third party and it was not a
State (owned by ODOT) or Posen truck.” Defendant has denied liability based on the
particular premise it had no duty to control the conduct of a third person except in cases
where a special relationship exists between defendant and either plaintiff or the person
whose conducts needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin Const.
Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However, defendant may still bear
liability if it can be established if some act or omission on the part of ODOT was the
proximate cause of plaintiff’s injury. Plaintiff has failed to prove that her damage was
proximately caused by any negligent act or omission on the part of ODOT or its agents.
See Wachs v. Dept. of Transp., Dist. 12, Ct. of Cl. No. 2005-09481-AD, 2006-Ohio-
7162; Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-AD, 2008-Ohio-
4190.
                               Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us




GLORIA HARPER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-01069-AD

Deputy Clerk Daniel R. Borchert


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.



                                                ________________________________
                                                DANIEL R. BORCHERT
                                                Deputy Clerk

Entry cc:

Gloria Harper                                   Jolene M. Molitoris, Director
14 Southard Avenue #202                         Department of Transportation
Toledo, Ohio 43604               1980 West Broad Street
                                 Columbus, Ohio 43223
RDK/laa
6/18
Filed 8/6/10
Sent to S.C. reporter 12/10/10
