[Cite as Deliere v. Ohio Dept. of Transp., 2011-Ohio-3781.]



                                       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




ALBERTA DELIERE

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant


        Case No. 2011-01402-AD


Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Alberta Deliere, filed this action against defendant, Department of
Transportation (ODOT), contending her 2001 Buick LeSabre was damaged on May 28,
2010 as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous roadway condition in a construction area on State Route 700 in Geauga
County.      Specifically, plaintiff claimed the rear shock absorbers on her car were
damaged when the vehicle traveled over a pavement transition area at a bridge
approach approximately “1 mile from Rte 422 intersection.” Plaintiff explained State
Route 700 had been resurfaced during May 2010 and the roadway resurfacing had left
a dangerous transition area at the bridge approach. Plaintiff recalled she “was not
traveling very fast as I just was in a 45 mile/hr area” when her car moved across the
bridge surface transition and “hit bottom.” Plaintiff reported she continued to drive her
car “until I heard metal on metal in November/2010.”           According to plaintiff, she
responded by taking her automobile to a service garage where she was informed the
rear control arm bushings on her vehicle were damaged from traveling for a long period
of time on broken shock absorbers. Attached to plaintiff’s complaint were copies of
three invoices for automotive repairs done by Burton Auto Service & Tire on December
3, 2010. Two of these invoices indicate repair work (including control arm bushings
installations) was done on a 2001 Buick LaSabre with a mileage listing of 76,349
carrying license plate #AYO7JY. The third invoice shows rear air shocks were installed
on a 2005 Buick LaSabre with a mileage listing of 75,640 bearing the license plate
#AYO7J. Plaintiff alleged the shock absorbers on her Buick LaSabre were originally
damaged on May 28, 2010 when she drove over a “bump” in the roadway created by an
inadequate resurfacing job done by ODOT contractor, Shelly & Sands, Inc. (Shelly).
Consequently, plaintiff filed this complaint seeking damages in the amount of $799.42,
the cost of replacement parts, related repair expense, and car rental expense she
incurred on December 3, 2010. The $25.00 filing fee was paid and plaintiff requested
reimbursement of that cost along with her damage claim.
      {¶ 2} Defendant acknowledged 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, Shelly. Defendant also acknowledged Shelly performed
resurfacing work on State Route 700 on May 27, 2010, one day prior to plaintiff’s
alleged damage incident. Defendant explained the particular construction project “dealt
with grading, planing and resurfacing with asphalt concrete of SR 700 in Geauga
County.” Defendant from plaintiff’s description located her alleged damage event at
milepost 3.87 on State Route 700; an area within the construction project limits.
Defendant asserted Shelly, by contractual agreement, was responsible for any damage
occurrence mishaps within the construction zone on State Route 700, including the area
where plaintiff’s described incident occurred, milepost 3.87.     Therefore, defendant
argued that Shelly 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. 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 on
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 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
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 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 “of the pavement on SR 700 prior to plaintiff’s incident.” Defendant reported
that the particular incident was stated to have occurred at milepost 3.87 on State Route
700 which is within the construction project limits and has an average daily traffic
volume between 2,880 and 3,000. Defendant related that ODOT “records indicate that
no calls or complaints were received at the Geauga County Garage regarding the
pavement” at milepost 3.87 prior to the incident in question despite the fact that daily
traffic volume exceeds 2,800 vehicles.      Defendant contended that plaintiff failed to
produce evidence establishing that her property damage was attributable to any
conduct on either the part of ODOT or Shelly. Defendant argued that plaintiff did not
offer sufficient evidence to prove her damage was caused by negligent roadway
maintenance.
       {¶ 6} Defendant submitted a letter from Shelly representative, Gary Tuttle,
responding to plaintiff’s damage claim. Tuttle provided the following documentation
referencing work performed by Shelly on State Route 700. Tuttle wrote: “Shelly and
Sands was contracted to perform resurfacing of the roadway with asphalt concrete.
Bridge resurfacing was not part of the contacted work. Shelly and Sands completed all
asphalt resurfacing work on May 27, 2010, one day prior to the date the claimant
alleges her vehicle damage occurred. The asphalt road surface was matched to the
bridge approach in accordance with ODOT specifications and accepted by ODOT
September 8, 2010.”
       {¶ 7} Plaintiff filed a response stating “I find it hard to believe that no one else
complained about the ‘bump’ or that ODOT didn’t know.” Plaintiff did not produce any
demonstrative evidence depicting the particular roadway condition she claimed
damaged her car. Plaintiff did not provide sufficient evidence to the trier of fact to
establish her vehicle was damaged on May 28, 2010 by a roadway condition created by
ODOT contractor, Shelly and approved by ODOT personnel.
       {¶ 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 on May 27, 2010. Plaintiff has not submitted
evidence to show that the repaved roadway surface was particularly dangerous or
deviated from ODOT specifications.
      {¶ 9} The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. This court is free to
believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court does not find plaintiff’s
description of the damage incident to be persuasive. The court does not find plaintiff’s
assertions persuasive in regard to hazardous conditions created by resurfacing.
      {¶ 10} 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.
      {¶ 11} “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 that the roadway was maintained
properly 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.
      {¶ 12} 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
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 723, 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-419.       Evidence has shown that the repavement project
compiled with ODOT specifications. Plaintiff has not provided evidence to prove that
the roadway area was particularly defective or hazardous or unknown 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 claimed incident in 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




ALBERTA DELIERE

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant
         Case No. 2011-01402-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:

Alberta Deliere                                   Jerry Wray, Director
18333 Claridon Troy Road                          Department of Transportation
Hiram, Ohio 44234                                 1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
3/24
Filed 4/20/11
Sent to S.C. reporter 7/29/11
