[Cite as Britton v. Ohio Dept. of Transp., 2015-Ohio-4852.]
                               IN THE COURT OF CLAIMS OF OHIO



KYLE BRITTON

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2014-00909-AD

Clerk Mark H. Reed

MEMORANDUM DECISION


        {¶1} Plaintiff Kyle Britton filed this claim on November 17, 2014 to recover
damages which occurred to his 2007 Chevrolet Cobalt which was damaged as a result
of an accident that occurred on October 6, 2014. The Plaintiff, in his complaint, alleges
that as he was driving on Alkaline Springs approaching Dixie Drive in Montgomery
County, he encountered a flagman in the employ of Barrett Paving Company. Alkaline
Springs is a public road maintained by the Ohio Department of Transportation. This
flagman then allegedly aggressively waived Mr. Britton to turn right at such an angle
that the motorist was forced to strike a guardrail to avoid approaching traffic. Plaintiff’s
vehicle sustained damages to his right passenger door and rear quarter panel with
repair costs in the amount of $2238.52. Plaintiff maintains an insurance deductible of
$500.00.
        {¶2} In the investigation report filed February 20, 2015, the defendant, Ohio
Department of Transportation (ODOT), indicated that the area where plaintiff had his
accident was a construction zone. The department had contracted with Barrett Paving
Company to do certain construction work on this section of Alkaline Springs near Dixie
Drive in Vandalia, Ohio. A copy of that contract was filed with the court as Defendant’s
Exhibit “B.”
       {¶3} In construction cases like this one, the court may only pass judgment on
whether the plaintiff has shown that ODOT breached its duty to the public in managing
the contractor in a reasonable manner and ensuring the safety of the public within the
construction zone.
       {¶4} As the court considers whether ODOT breached its duty to the public, the
court must take into account that the area where the accident occurred was a
construction zone. Ohio law is clear that ODOT cannot guarantee the same level of
safety during a highway construction project as it can under normal traffic conditions.
Feichtner v. Ohio Dept. of Transp.(1995), 114 Ohio App. 3d346, 354; Roadway
Express, Inc. The test is whether, under the totality of the circumstances, "ODOT acted
sufficiently to render the highway reasonably safe for the traveling public during the
construction project." Basilone v. Ohio Dept. of Transp. (Feb. 13, 2001), Franklin App.
No. 00AP-811, citing Feichtner, and Lumbermens Mut. Cas. Co. v. Ohio Dept. of
Transp. (1988), 49 Ohio App.3d. 129.
       {¶5} In this case, there is nothing in the record that would allow the court to find
that the department did not act appropriately to keep the construction area reasonably
safe. There is no evidence that ODOT knew or should have known about negligent
flagging going on in this construction area. The plaintiff did not offer any evidence to
counter what was in ODOT’s investigation report regarding this element. This is not to
say that the alleged action of the flagman was or was not unreasonable. Barrett Paving
is an independent contractor and that entity would be responsible for any negligent
actions of its employees. However, Barrett Paving is not the defendant here; ODOT is
and thus, the court need not decide the issue of any alleged acts of negligence on the
part of Barrett Paving.
       {¶6} Since the plaintiff is unable to prove that ODOT was negligent in the
Case No. 2012-06637                       -3-                                   ENTRY

management of the contractor during this project, the claim must fail.




                        IN THE COURT OF CLAIMS OF OHIO



KYLE BRITTON

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

Case No. 2014-00909-AD

Clerk Mark H. Reed

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.



                                                ________________________________
                                                MARK H. REED
                                 Clerk

Entry cc:

Kyle Britton                     Jerry Wray, Director
209 Ranchview Drive              Ohio Department of Transportation
Vandalia, Ohio 45377             1980 West Broad Street
                                 Mail Stop 1500
                                 Columbus, Ohio 43223


Filed 4/13/15
Sent to S.C. Reporter 11/24/15
