[Cite as Peine v. Ohio Dept. of Transp., 2010-Ohio-2026.]

                                       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




KELLIE C. PEINE

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

        Case No. 2009-07806-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Kellie C. Peine, asserted her 2006 Volkswagen Jetta received
windshield and body damage from roadway debris while she was traveling south “at the
Rt 91 and Rt 271 split” in Lake County at approximately 6:55 a.m. on August 7, 2009.
Plaintiff pointed out the roadway area where her damage occurred was located within a
construction zone where the roadway surface had been milled in preparation for
repaving. According to plaintiff, the debris that damaged her vehicle was left on the
roadway surface after milling operations had been completed. Plaintiff described her
particular damage incident relating that as she was driving on Interstate 271 “passing
cars tires threw pebbles/stones that cracked my windshield and chipped the paint on my
car.”   Plaintiff contended the contractor who conducted the milling operations, The
Shelly Company (Shelly), had failed to properly sweep the roadway after the surface
had been milled.         Plaintiff implied the damage to her automobile was proximately
caused by negligence on the part of defendant, Department of Transportation (ODOT),
in failing to maintain the roadway construction area free of hazardous debris conditions.
Consequently, plaintiff filed this complaint seeking to recover $1,130.19, the cost of
automotive repair needed resulting from the August 7, 2009 incident. 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 construction project under the control
of ODOT contractor, Shelly.     Defendant explained the particular project “dealt with
resurfacing with asphalt concrete, pavement repair, guardrail installation, signing and
other related work from Mayfield Hts on I-271 in Cuyahoga County to I-90 in Lake
County.”    Defendant further explained that from plaintiff’s description her damage
incident occurred at state milepost 40.22 on Interstate 271, which is located at the
northern part of the construction project in Lake County.       Defendant asserted that
Shelly, by contractual agreement, was responsible for any roadway damage
occurrences or mishaps within the construction zone. Therefore, ODOT argued that
Shelly 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.
        {¶ 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 Shelly had any
knowledge regarding debris on the roadway prior to plaintiff’s property damage event.
ODOT records (copies submitted) report no calls or complaints were received at the
ODOT Lake County Garage regarding debris conditions on Interstate 271 at or near
milepost 40.22. Defendant noted the particular area of Interstate 271 “has an average
daily traffic volume between 91,520 and 100,980, however, no other complaints were
receive” regarding debris left on the roadway from milling operations.       Defendant
contended plaintiff failed to produce evidence establishing that her property damage
was attributable to any conduct on either the part of ODOT or Shelly. ODOT records
(copies submitted) show milling operations were conducted on Interstate 271 South
from 7:00 p.m. on August 6, 2009 to 7:00 a.m. on August 7, 2009. Both ODOT and
Shelly records (copies submitted) indicate the milled roadway surface was swept of
debris by “2 power Brooms.” The ODOT “Inspectors Daily Report” (copy submitted)
does not bear any notation concerning any problem with debris left on the roadway by
the milling process.
       {¶ 6} 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
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. 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 August 7, 2009.
      {¶ 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 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.
      {¶ 8} Defendant advised plaintiff’s own description of the incident provides that
her property damage was caused by unidentified third party motorists not affiliated with
ODOT. Defendant related plaintiff made the statement in her complaint that “passing
cars tires threw pebbles/stones that cracked my windshield and chipped the paint on my
car.” Defendant has denied liability based on the particular premise that 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.
This court, as 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.
      {¶ 9} “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.
       {¶ 10} Plaintiff has failed to establish her damage was proximately caused by any
negligent act or omission on the part of ODOT. In fact, the sole cause of plaintiff’s injury
was the act of an unknown third party which did not involve ODOT. Plaintiff has failed
to prove, by a preponderance of the evidence, that defendant failed to discharge a duty
owed to plaintiff, or that plaintiff’s injury was proximately caused by defendant’s
negligence. Plaintiff failed to show that the damage-causing object at the time of the
damage incident was connected to any conduct under the control of defendant or any
negligence on the part of defendant. Herman v. Ohio Dept. of Transp. (2006), 2006-
05730-AD. Plaintiff has failed to prove her property 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




KELLIE C. PEINE

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

       Case No. 2009-07806-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:

Kellie C. Peine                                   Jolene M. Molitoris, Director
1142 Travis Drive                                 Department of Transportation
Madison, Ohio 44057                               1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
1/6
Filed 1/22/10
Sent to S.C. reporter 5/7/10
