[Cite as Wooldridge v. Ohio Dept. of Transp., 2010-Ohio-6543.]

                                      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




AMY WOOLDRIDGE

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-09311-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Amy Woolridge, filed this action against defendant, Department of
Transportation (ODOT), contending her 2009 Toyota Camry LE was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
roadway condition and in failing to advise motorists of the condition in a construction
area on US Route 127 in Hamilton County. Plaintiff noted the front bumper on her car
was scratched when traveling over a dip in the roadway presumedly created by
construction activity.       Plaintiff located the dip in the roadway at the intersection of
Waycross Road and Hamilton Avenue (US Route 127). Plaintiff recalled her damage
incident occurred on November 12, 2009 at approximately 5:45 p.m.                  According to
plaintiff, “[n]o signs are listed posting a dip in the road, only a sign stating ‘Grooved
Pavement.’” In her complaint, plaintiff requested damages in the amount of $594.48,
the total cost to repair the bumper on her vehicle. The filing fee was paid.
        {¶ 2} Defendant acknowledged that the area where plaintiff’s described damage
event occurred was located within the limits of a working construction project under the
control of ODOT contractor, Prus Construction Company (Prus). Defendant explained
the particular project “dealt with widening Hamilton Avenue (US 127) from Waycross to
eastbound I-275 on US 127 in Hamilton County. Defendant located plaintiff’s damage
incident at milepost 14.18 on US Route 127, “which is the beginning of this project in
Hamilton County.” Defendant asserted Prus, by contractual agreement was responsible
for any roadway damage occurrences or mishaps within the construction zone.
Therefore, defendant argued Prus 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 defects were delegated when an independent contractor
takes control over a particular section of roadway. All work by the contractor was to be
performed in accordance with ODOT mandated specifications and requirements and
subject to ODOT approval. Furthermore, defendant maintained an onsite personnel
presence in the construction project area.
       {¶ 3} 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.
       {¶ 4} 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
contention 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 particular construction work.       See Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
      {¶ 5} Alternatively, defendant argued that neither ODOT nor Prus had any
knowledge of any problems with the roadway contour at the intersection of Waycross
Road and Hamilton Avenue.        Defendant advised ODOT “records indicate that no
complaints were received at the Hamilton County Garage for US 127 having a dip in the
road prior to Plaintiff Woolridge’s incident.” Defendant related no calls or complaints
regarding roadway conditions were registered despite the fact “that this portion of US
127 has an average daily traffic volume between 23,850 and 24,700.”            Defendant
argued plaintiff failed to produce evidence to establish her property damage was
attributable to any conduct on either the part of ODOT or Prus. Defendant contended
plaintiff did not offer sufficient evidence to prove her damage was caused by negligent
roadway maintenance.
      {¶ 6} Defendant submitted a copy of correspondence from Prus Vice President,
Paul Long, addressing roadway conditions at the intersection of Waycross Road and
Hamilton Avenue, as well as plaintiff’s damage claim.       Long wrote the damage to
plaintiff’s “car apparently occurred when her vehicle crossed the asphalt wedge”
constructed at the intersection location. Long noted: [t]his wedge was installed to
facilitate traffic movement from the new pavement at Waycross onto the existing
pavement lanes on Hamilton Avenue. The wedge was installed correctly as detailed in
the project plan documents and as discussed with ODOT personnel.” Long specifically
denied the installed wedge created an unsafe roadway condition and reported
“thousands of motorists cross this wedge daily” without damage or mishap.           Long
suggested plaintiff’s damage incident may have been caused by traveling at an unsafe
speed for roadway conditions. It should be pointed out plaintiff, in her complaint, denied
“driving excessively fast” and asserted she was traveling “at a reasonable speed” at the
time of her damage occurrence.
       {¶ 7} Defendant provided copies of e-mails from ODOT Resident Engineer,
Dennis Stemler and ODOT Project Engineer, Darshan Singh, detailing specifics about
the wedge installed a the intersection of Waycross Road and Hamilton Avenue.
Stemler advised that the project plans “detail a 12 foot wedge by 100 feet across.”
Singh wrote the particular wedge installed “is put in wider and longer than specified in
plans to better accommodate traffic.”     Singh expressed the written opinion that the
“[t]raveling public do need to exercise caution driving through the work zone.”
       {¶ 8} Generally, in order 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
incident.   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. See 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. Plaintiff, in
the instant claim, has alleged that the damage to her vehicle was directly caused by
construction activity of ODOT’s contractor prior to November 12, 2009. Plaintiff has not
submitted evidence to show that the wedged roadway surface was particular dangerous
for the motorists traveling through the area.
       {¶ 9} Defendant may bear liability if it can be established if some act or
omission on the part of ODOT or its agents was the proximate cause of plaintiff’s injury.
This court, as the trier of fact, determines questions of proximate causation. Shinaver v.
Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477.
       {¶ 10} “If any injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of the negligence.         It is not
necessary that the defendant should have anticipated the particular injury.           It is
sufficient that his act is likely to result in an injury to someone.” Cascone v. Herb Kay
Co. (1983), 6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber
Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171
N.E. 327. Evidence available tends to point out the roadway was maintained property
under ODOT specifications.     Plaintiff failed to prove 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; Vanderson
v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-09961-AD, 2006-Ohio-7163; Shiffler v.
Ohio Dept. of Transp., Ct. of Cl. No. 2007-07183-AD, 2008-Ohio-1600.
      {¶ 11} 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 unreasonable
risk of harm is the precise duty owed by ODOT to the traveling public both under normal
traffic conditions 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; Rhodus, 67 Ohio App.
3d at 729, 588 N.E. 2d 864.      In the instant claim, plaintiff has failed to introduce
sufficient evidence to prove that defendant or its agents maintained a known hazardous
roadway condition. See Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-
AD, 2008-Ohio-4190. Evidence has shown that the repavement project complied with
ODOT specifications. Plaintiff has not provided evidence to prove that the roadway
area was particular defective or hazardous to motorists. Reed v. Ohio Dept. of Transp.,
Dist. 4, Ct. of Cl. No. 2004-08359-AD, 2005-Ohio-615. Plaintiff has failed to provide
sufficient evidence to prove that defendant was negligent in failing to redesign or
reconstruct the roadway repavement procedure considering plaintiff’s incident appears
to be the sole incident at this area. See Koon v. Hoskins (Nov. 2, 1993), Franklin App.
No. 93AP-642; also, Cherok v. Dept. of Transp., Dist. 4, Ct. of Cl. No. 2006-01050-AD,
2006-Ohio-7168.




                              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




AMY WOOLRIDGE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2009-09311-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:

Amy Woolridge                                    Jolene M. Molitoris, Director
10808 Invicta Court                              Department of Transportation
Cincinnati, Ohio 45231                           1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
8/16
Filed 9/20/10
Sent to S.C. reporter 12/29/10
