[Cite as Madison v. Ohio Dept. of Transp., 2010-Ohio-3636.]



                                      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




KEVIN MADISON

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-08616-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Kevin Madison, filed this action against defendant, Department of
Transportation (ODOT), alleging he suffered paint damage to his 2002 Chevrolet Blazer
as a proximate cause of negligence on the part of ODOT personnel in conducting a
roadway painting operation from Interstate 271 to the spur of Interstate 90 in Cuyahoga
County. Plaintiff recalled the paint damage incident occurred on October 7, 2009 at
approximately 8:25 p.m.           In his complaint, plaintiff provided the following narrative
description of his property damage event stating: “I was coming down the highway
around the loop (and) saw the trucks ahead of me they had (a directional) arrow so I
merged to the left to go around them. As they were spraying the highway white lines I
got out of the way (but the paint) still got my truck.”          Plaintiff explained the paint
splattered on his truck cannot be removed and consequently the vehicle needs to be
repainted. Plaintiff requested damage recovery in the amount of $2,420.84, the total
cost of repainting his 2002 Chevrolet Blazer. Plaintiff submitted a repair estimate dated
October 22, 2009 reflecting the damage amount claimed.                Plaintiff also submitted
multiple photographs of his truck depicting white paint damage on the left side of the
vehicle generally confined to both front and back wheel wells and the lower portions of
both front and back doors as well as the left side rear bumper. The filing fee was paid.
       {¶ 2} Defendant advised plaintiff contacted ODOT on October 15, 2009 and
spoke with Public Information Officer, Jocelynn Clemings, who determined from her
conversation with plaintiff that the purported location of the paint damage incident “was
northbound on I-271 around the spur to I-90.” Defendant explained “the location of
Plaintiff Madison’s alleged incident could be within four construction projects since he
didn’t give a definite location.” The four construction projects were under the control of
three ODOT contractors, two projects with The Shelly Company (Shelly) and one each
under the control of Karvo Paving Company (Karvo) and an entity identified as Dura
Mark, Inc. (Dura Mark).     Defendant submitted a copy of an e-mail from Jocelynn
Clemings regarding her telephone conversation with plaintiff, who apparently told
Clemings that his vehicle was sprayed with paint by a striping contractor working in the
area on October 7, 2009.       According to defendant’s “Maintenance History” (copy
submitted), no ODOT paint crews conducted painting operations in the area on October
7, 2009. Furthermore, according to information submitted by Chuck Porter of Trafftech,
Inc. (Trafftech), the painting subcontractor for Shelly, no Trafftech personnel were
performing painting operations within the project limits on October 6, 2009, October 7,
2009, or October 8, 2009. Additionally, evidence has shown no Karvo personnel or
subcontractor conducted paint striping operations on October 7, 2009 within the
construction project area under their control.
       {¶ 3} Defendant supplied a copy of a letter from Mike Krenn, president of Aero-
Mark, Inc. (Aero-Mark), a second painting subcontractor of Shelly concerning the
painting activities of Aero-Mark on October 7, 2009. Krenn noted:
       {¶ 4} “On the evening of October 7, 2009, an Aero-Mark, Inc. crew was striping
the white epoxy lane lines on I-271 inside of an approved ODOT District 12 lane closure
with the assistance of a LEO (police officer and car).
       {¶ 5} “According to our on-board computer generated ODOT DLS report, we
were not on project 1024-09 until 12:36 a.m.”
       {¶ 6} Krenn advised that Dura Mark personnel were performing roadway painting
operations within the area of their project limits during the early evening of October 7,
2009.
        {¶ 7} From the evidence presented, it appears plaintiff’s vehicle received paint
damage from paint applied to the roadway by a contractor, probably Dura Mark. This
court has previously held that ODOT cannot be held liable for any alleged negligence on
the part of a contractor in conducting painting operations on state roadways. ODOT
may delegate its duty of care in situations where an independent contractor such as
Dura Mark undertakes roadway painting projects. See Henderson v. Ohio Dept. of
Transp., Ct. of Cl. No. 2003-11496-AD, 2004-Ohio-1839, adopting the rationale of Gore
v. Ohio Dept. of Transp., Franklin App. No. 02AP-996, 2003-Ohio-1648; also Henning v.
Dept. of Transp. (2006), 2006-04369-AD. ODOT is not the proper party defendant in
this action and therefore, this claim is dismissed.




                                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




KEVIN MADISON

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2009-08616-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, plaintiff’s case is DISMISSED
with prejudice. Court costs are assessed against plaintiff.



                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Kevin Madison                                     Jolene M. Molitoris, Director
1130 E. 176 Street                                Department of Transportation
Cleveland, Ohio 44119                             1980 West Broad Street
                                                  Columbus, Ohio 43223.
RDK/laa
3/3
Filed 3/30/10
Sent to S.C. reporter 8/6/10
