[Cite as Norman v. Ohio Dept. of Transp., 2011-Ohio-3153.]

                                                       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




JAMES W. NORMAN

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant
       Case No. 2009-04548

Judge Clark B. Weaver Sr.

DECISION




        {¶ 1} Plaintiff brought this action against defendant, the Ohio Department of
Transportation (ODOT), alleging negligence. The issues of liability and damages were
bifurcated and the case proceeded to trial on the issue of liability.
        {¶ 2} This case arises out of a motor vehicle accident that occurred on June 7,
2007, at approximately 12:40 p.m., in Tuscarawas County, Ohio. At the time, plaintiff
was operating a motorcycle southbound on State Route 93 (SR 93), en route from
Barberton to West Lafayette. It was a clear, sunny day. In the area in which plaintiff
was traveling, SR 93 is a winding, hilly, two-lane road that passes through a rural
farming region; the posted speed limit was 55 miles per hour (mph).
        {¶ 3} Also at the time, ODOT was conducting a “spot berming” operation in an
approximately seven-tenths of a mile stretch of SR 93’s southbound lane.                      The
operation involved dumping aggregate material onto the roadway and grading it into the
shoulder, after which a truck with a front-mounted rotary sweeper (sweeper truck)
cleared any remaining debris off the road. The work progressed from area to area
along the roadway as needed.
       {¶ 4} In order to perform its work, ODOT had in place a temporary traffic control
(TTC) pattern that included orange warning signs on the approach at either end of the
work zone alerting drivers first of “road work ahead,” then “one lane road ahead” and,
lastly, a sign bearing the symbol for a flagger. The flaggers were then located at the
north and south ends of the work zone, approximately three-tenths of a mile from where
the work was being performed. Each flagger was equipped with a paddle sign bearing
the word “stop” on one side and “slow” on the other. By communicating via radio, the
flaggers alternately stopped traffic on their end of the work zone and, when cleared to
do so by the other flagger, would turn their paddle to the “slow” sign and direct motorists
to proceed into the open northbound lane.
       {¶ 5} Plaintiff testified that he did not see any of the three warning signs on the
approach to the work zone. He related that the first indication that he had of any
change in the normal traffic pattern was when he observed a flagger standing in the
roadway. He stated that the flagger waved either his hand or a flag in an up and down
motion, which he interpreted as a signal to slow down. Plaintiff then proceeded past the
flagger in the north bound lane and slowed down as instructed, but he returned to the
southbound lane at some point. He testified that he was traveling at approximately 30
mph when he crested a blind hill and encountered a patch of loose gravel that was
being cleared by the sweeper truck. Plaintiff maintains that the sweeper truck was
backing up when he crested the hill and that, although he braked and swerved in an
attempt to avoid a collision, he was unable to do so. Plaintiff’s motorcycle struck the
right, rear of the sweeper truck before crashing into a ditch off the side of the roadway.
He sustained extensive physical injuries to the left side of his body.
       {¶ 6} Plaintiff contends that ODOT was negligent in the implementation of its
TTC pattern and that its sweeper truck driver was negligent in backing his vehicle up a
blind hill. Defendant denies liability and contends that plaintiff’s own negligence was the
sole proximate cause of his injuries.
       {¶ 7} In order to prevail upon a claim of negligence, plaintiff must prove by a
preponderance of the evidence that defendant owed him a duty, that defendant’s acts or
    omissions resulted in a breach of that duty, and that the breach proximately caused his
    injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-2573,
    citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77.
            {¶ 8} ODOT is subject to a general duty to exercise ordinary, reasonable care in
    maintaining state highways. White v. Ohio Dept. of Transp. (1990), 56 Ohio St.3d 39,
    42.    “The scope of ODOT’s duty to ensure the safety of state highways is more
    particularly defined by the Ohio Manual of Uniform Traffic Control Devices [OMUTCD],
    which mandates certain minimum safety measures.” State Farm Auto. Ins. Co. v. Ohio
    Dept. of Transp. (June 8, 1999), Franklin App. Nos. 98AP-936, 98AP-1028, 98AP-960,
    98AP-1536, 98AP-976, 99AP-48.                “[N]ot all portions of the manual are mandatory,
    thereby leaving some areas within the discretion and engineering judgment of
    [defendant.]” Leskovac v. Ohio Dept. of Transp. (1990), 71 Ohio App.3d 22, 27, citing
    Perkins v. Ohio Dept. of Transp. (1989), 65 Ohio App.3d 487, 491.
            {¶ 9} In support of his claims, plaintiff produced evidence that, when his counsel
    contacted ODOT regarding what traffic control measures had been in place on the date
    of the accident, he was provided with a copy of the OMUTCD’s 6C-3 “One-Lane, Two-
    Way Traffic Taper” specifications.              (Plaintiff’s Exhibit 7.)       Plaintiff also produced
    evidence that, when his counsel again contacted ODOT requesting clarification as to
    whether the 6C-3 layout was an example of an appropriate plan or whether it was the
    actual plan that had been in place at the time, ODOT responded that the 6C-3 was, in
    fact, the TTC plan that had been in place. (Plaintiff’s Exhibit 9.) The 6C-3 consists of all
    of the above-described warning signs and use of flaggers, but also includes a series of
    “channelizing” traffic cones placed first in a taper formation from the right berm of the
    roadway to the center line, then continuing along the center line up to and past the work
    activity, and finally tapering off to the right berm at the end of the work zone.
            {¶ 10} In further support of his claims, plaintiff relies upon ODOT’s “Guidelines for
    Traffic Control in Work Zones.”1                The handbook contains a matrix diagram of
    “Suggested Temporary Traffic Control For Work Activities” that provides two options for


1
The handbook summarizes certain guidelines set forth in the OMUTCD. The introduction specifies that “[t]his
    information is intended to provide the principles of proper work zone traffic control, but is not a standard.
    Part 6 of the OMUTCD contains the standards for work zone traffic control.” (Defendant’s Exhibit A, Page
    1.)
establishing a TTC layout in a spot berming operation:           a TA-10 or a TA-17.
(Defendant’s Exhibit A.) The TA-10 option reflects the 6C-3 pattern. The TA-17 option
utilizes a “shadow” vehicle in lieu of cones and flaggers. A shadow vehicle is equipped
with strobe and flashing lights and may also include a truck-bed mounted, rear-facing
arrow sign or other warning message to provide additional traffic direction. A shadow
truck closely follows the work vehicles and serves to alert drivers of the exact work
activity area.
       {¶ 11} Notwithstanding the information plaintiff received from ODOT, there is no
question that channelizing cones were not used in the TTC layout at the time of the
accident. There was testimony that a shadow vehicle, albeit without an additional truck-
mounted warning sign, was parked at the crest of the hill north of the sweeper truck.
The truck appears in several of the photographs which were taken by the Ohio State
Highway Patrol (OSHP) trooper who responded to the scene.              The evidence is
conflicting as to whether the truck was in that location when the accident occurred.
Based upon the information provided by ODOT and the OMUTCD guidebook, plaintiff
argues that ODOT failed to comply with its own standards in providing a safe and
effective TTC in the area where plaintiff’s accident occurred.
       {¶ 12} Arthur Fondriest, ODOT’s project foreman on the date of the incident,
chose and put into place the TTC layout for the work zone. According to Fondriest, the
TTC that he chose was the same type that he had used for spot berming work for the 29
years that he was employed by ODOT.             He testified that traffic cones are not
appropriate for a “mobile operation” such as spot berming because the TTC must be
repeatedly set up and taken down as the work progresses. He explained that the goal
of a TTC layout is to protect not only motorists but also the ODOT work crew, and that
repeated placement and movement of cones is both hazardous for workers as well as a
distraction for motorists. According to Fondriest, cones interfere with the operation of
both the grader and sweeper trucks in a berming operation.          With respect to the
sweeper truck, Fondriest testified that it typically requires more than one pass over the
roadway to clear all of the debris and that, in order to make a second pass, the truck
    must make a “U” turn into the opposite lane, drive back to an appropriate starting point,
    make a “U” turn back into the work lane, and then begin sweeping again.
            {¶ 13} Fondriest insisted that the 6C-3 layout is the pattern used for “ditching” or
    tree trimming where the worksite remains in place for longer periods and does not
    involve vehicles moving in and out of the work lane. Fondriest further noted that the
    TTC that he used included everything in the 6C-3 layout except the cones, but that he
    had added a shadow vehicle. Fondriest testified that it was his truck that was shown in
    the OSHP photographs, and that he had parked it in the southbound lane at the crest of
    the blind hill, with its strobe lights activated, behind the area where the sweeper truck
    was operating.
            {¶ 14} Timothy Tuttle, plaintiff’s accident reconstruction expert, calculated that
    plaintiff was traveling at approximately 29 to 34 mph, in the southbound lane, when his
    motorcycle began to skid. He opined that it was “impossible” that Fondriest’s truck was
    parked at the crest of the hill at the time of the accident. His analysis of the physical
    evidence, including the skid marks shown in the OSHP photographs, was that plaintiff
    would not have had sufficient time to travel from the southbound lane, around the
    shadow vehicle, and back into the southbound lane before the point where he
    encountered the gravel, began to skid, and was unable to avoid the collision.
            {¶ 15} Carmen Daecher, plaintiff’s traffic engineering expert, testified that
    pursuant to Section 6G.01 of the OMUTCD (Plaintiff’s Exhibit 31), TTC patterns are
    arranged according to four criteria: the duration of the work involved, the location, the
    type of work, and the type of roadway. Daecher characterized the duration of the work
    as “short-term stationary,”2 the location as “within the traveled roadway,” and the
    highway type as “having no significant sight distance.” With those considerations in
    mind for a berming operation, Daecher opined that a TA-10/6C-3 layout with traffic
    cones was required. In his view, those same characteristics, when applied to a mobile
    berming operation, would have required a TA-17 layout; however, he did not believe
    that the required shadow vehicle was present when the accident occurred. He testified
    that the OMUTCD sets forth the “minimal desirable standards” and that components of

2
Section 6G.02 of the OMUTCD defines short-term stationary work as “daytime work that occupies a location
    for more than 1 hour within a single daylight period.” A mobile operation is defined as “work that moves
    intermittently or continuously.”
the suggested TTC’s can be modified by adding safety components, but not by taking
any components away. It was his opinion that ODOT did not have either a proper TA-
10 or TA-17 layout in place at the time.
       {¶ 16} In response to plaintiff’s evidence, defendant presented the testimony of
Doug Dillon, a traffic engineer and Roadway Service Manager for ODOT’s District 11,
where the accident occurred, and that of Dale Meyer, an accident reconstruction expert.
       {¶ 17} Dillon testified that there are 3,500 miles of roadway in District 11 and that
spot berming is a routine operation that is performed each year on the 7,000 miles of
road berm in the district. He related that it was he who had provided the 6C-3 diagram
in response to plaintiff’s request for information.    Dillon testified that he based his
response upon information that he received from the county transportation manager and
a review of the work logs for the date in question. He stated that he selected the TTC
that he thought was appropriate, but that he was not at the site at the time that the
accident occurred. Dillon insisted that the 6C-3 was the plan in use at the time, with the
exception of the channelizing cones. He noted that, according to the OMUTCD, such
cones are optional for a moving operation. Dillon was adamant that, based upon his
engineering and ODOT work experience, spot berming is considered a moving
operation. He explained that the OMUTCD by its own language sets forth “typical”
layouts that experienced road crews are expected to modify for the particular
circumstances in order to create the best possible safety conditions for both themselves
and the public. He concluded that the TTC in use on the date of the accident complied
with all OMUTCD standards.
       {¶ 18} Meyer testified regarding the cause of the accident and whether the TTC
layout was a factor. It was his opinion that the TTC was appropriate, assuming that it
included Fondriest’s truck as a shadow vehicle at the crest of the hill. Based upon his
investigation, Meyer opined that the truck was located at a sufficient distance north of
the hill crest for a motorcyclist to drive past it and then back into the southbound lane
before encountering the loose gravel and beginning to skid. Meyer further testified that,
in his view, the cause of the accident was a “clear case” of plaintiff’s failure to maintain
an assured clear distance ahead. He concluded that if plaintiff had paid reasonable
attention to the warning signs and the flagger’s instruction on the approach to the area,
plaintiff would have been alert to the presence of a work zone and had sufficient time
and distance to avoid the accident.
       {¶ 19} Upon review of the testimony and other evidence presented, the court
finds as follows.
       {¶ 20} The weight of the evidence establishes that in order to be in compliance
with the OMUTCD standards, the TTC in place at the work zone had to include either
channelizing cones or a shadow vehicle. Although the manual does not state that the
use of either is mandatory, based upon the duration of the work, its location, the nature
of the operation, and the limited sight-distance that existed in the area, reasonable
discretion and judgment dictate that one or the other be in place. Dillon acknowledged
as much when he twice sent the 6C-3 specifications to plaintiff, as did Fondriest when
he testified that he had parked his ODOT truck at the crest of the hill in lieu of using
traffic cones. Because it is evident that there were no channelizing cones in place, the
question becomes whether the shadow vehicle was present at the time of the accident.
The court is convinced that it was not. Fondriest testified that he was at the bottom of
the hill talking to other workers when the accident occurred. He related that he was in
that location because the work in the area was complete, except for the sweeping, and
that he was discussing moving the work zone to the next location. While the OSHP
photographs show Fondriest’s truck at the crest of the hill, the trooper did not arrive at
the scene until approximately 20 minutes after the accident occurred and it is
reasonable to assume that the photographs were not taken until some time later. The
court finds that Fondriest was a credible and candid witness; however, the court is
persuaded that he simply failed to recall whether he walked or drove his truck down the
hill to talk to the other workers. The court finds that moving the truck away from the
work activity before it was complete constitutes a breach of the duty of care owed to
plaintiff and was a proximate cause of the accident.
       {¶ 21} With respect to the issue whether the sweeper truck was backing up, and
thereby reduced or eliminated plaintiff’s ability to react to and avoid the accident, the
court finds that the evidence fails to establish that such was the case. Both Fondriest
and Sherman Jones, who was operating the sweeper truck, testified quite credibly
regarding the method for turning the truck in order to make a second or third pass over
     the debris remaining on the roadway. Fondriest and Jones recalled clearly that Jones
     was driving forward at the time of the accident.                 There was simply no persuasive
     evidence that the sweeper truck was backing up for any reason prior to the accident.
     Accordingly, the court concludes that the sweeper truck’s movement was not a
     proximate cause of the accident.
             {¶ 22} In short, the court finds that ODOT’s negligence in moving the shadow
     vehicle, combined with plaintiff’s own negligence to produce plaintiff’s injury.3 As such,
     Ohio’s comparative fault statute, R.C. 2315.33,4 is applicable.
             {¶ 23} The common law of Ohio imposes a duty of reasonable care upon
     motorists that includes the responsibility to observe the environment in which one is
     driving. See, e.g., Hubner v. Sigall (1988), 47 Ohio App.3d 15, 17. The evidence in this
     case is clear that plaintiff did not observe any of the three warning signs on the
     approach to the work zone, or that the flagger used a paddle sign as opposed to a cloth
     flag or the hand signals that plaintiff recalled. Further, plaintiff could not even recall
     whether he was directed to proceed into the northbound lane; he testified that he
     thought that the flagger was there only to slow down traffic. The court does not doubt
     that plaintiff slowed his speed in response to the flagger’s direction, however, R.C.
     4511.21 provides:



3
  In reaching this determination, the court has not considered the testimony of Clantz Liggett, the flagger who
      was on duty in the southbound lane at the time of the accident. Liggett testified that shortly before the
      accident he had stopped a line of traffic, including a semi-tractor trailer and eight or nine cars, when a
      motorcyclist sped out from the line and drove past him before stopping and looking back for direction.
      Liggett stated that he had been cleared by the other flagger to release his line of traffic, so he motioned
      for the motorcyclist to proceed, then released the other vehicles. However, none of the witnesses who
      were present at the accident scene recalled seeing a line off traffic, particularly a semi-tractor trailer,
      travel through the area after the accident. Further, Liggett recalled that the motorcyclist who sped past
      him was wearing a helmet; plaintiff was not. The court concludes that the totality of the evidence
      establishes that plaintiff was not the motorcyclist that Liggett identified.
4
 R.C. 2315.33 provides:

             “The contributory fault of a person does not bar the person as plaintiff from recovering damages
     that have directly and proximately resulted from the tortious conduct of one or more other persons, if the
     contributory fault of the plaintiff was not greater than the combined tortious conduct of all other persons
     from whom the plaintiff seeks recovery * * *.”
       {¶ 24} “(A) No person shall operate a motor vehicle * * * at a speed greater or
less than is reasonable or proper, having due regard to the traffic, surface, and width of
the street or highway and any other conditions, and no person shall drive any motor
vehicle * * * upon any street or highway at a greater speed than will permit the person to
bring it to a stop within the assured clear distance ahead.” (Emphasis added.)
       {¶ 25} In State v. Dehnke (1974), 40 Ohio App.2d 194, the court explained that
“[i]n considering the wording of the statute, we find that the single basic requirement is
that the speed be reasonable under the circumstances existing. The statutory limits for
various types of roads or highways furnishes a two pronged presumption affecting the
presentation of evidence. A speed in excess of the statutory limit is a prima facie
unreasonable speed; a speed at or below the statutory limit is a prima facie reasonable
speed.    But the ultimate criterion is that the speed be reasonable considering the
conditions then existing.” Id. at 195-196. (Emphasis added.)
       {¶ 26} In this case, plaintiff testified that he had previously traveled SR 93 on
numerous occasions and was familiar with its terrain. He acknowledged that the area
was in “Amish country” and that it was important to be alert for buggies and bicycles.
He also acknowledged that he observed a flagger in the roadway and that he was
directed to slow down. The court finds that, given plaintiff’s knowledge and familiarity
with the surroundings, his lack of attentiveness and his speed through the area was
unreasonable for the conditions then existing. The court finds that the degree of fault
attributable to plaintiff is 75 percent.
       {¶ 27} For the foregoing reasons, the court finds that although defendant was
negligent in failing to maintain a safe and efficient TTC, any negligence on its part is
outweighed by that of plaintiff.           Judgment shall therefore be entered in favor of
defendant.




                                                   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
JAMES W. NORMAN

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant
        Case No. 2009-04548

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY




         This case was tried to the court on the issue of liability.                 The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of defendant. Court costs are assessed against
plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.



                                                           _____________________________________
                                                           CLARK B. WEAVER SR.
                                                           Judge

cc:


Christopher P. Conomy                                        J. Thomas Henretta
Assistant Attorney General                                   400 Key Building
150 East Gay Street, 18th Floor                              159 South Main Street
Columbus, Ohio 43215-3130                                    Akron, Ohio 44308

Mark C. Willis
Todd L. Willis
670 West Market Street
Akron, Ohio 44303-1414

LH/cmd/Filed June 9, 2011/To S.C. reporter June 22, 2011
