[Cite as Estate of Morgan v. Ohio Dept. of Transp., 2010-Ohio-1531.]

                                                        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




THE ESTATE OF MARLEE GRACE MORGAN

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant
       Case No. 2006-03869

Judge Joseph T. Clark

DECISION




        {¶ 1} Plaintiff brought this action against defendant, 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} At approximately 7:00 p.m. on June 10, 2005, Shane Morgan arrived at
the home of his ex-wife, Angela, to pick up his 19-month-old daughter Marlee Grace for
a scheduled visitation.         Shane was driving a Toyota Corolla with both his mother,
Roberta Morgan, and his father, Gary Morgan, as passengers.                   Marlee Grace was
secured in a child’s car seat located in the rear of the vehicle. Roberta was seated next
to Marlee Grace and Gary was seated in the front passenger’s seat.
        {¶ 3} The Morgans left Angela’s home, in a moderate rain, and headed to
Shane’s home in Manchester, Ohio, which was Gary’s destination. After Gary exited
the vehicle in Manchester, Roberta remained in the back seat next to Marlee Grace for
the trip to Roberta’s home in Aberdeen, Ohio.
       {¶ 4} Three to four miles away from Roberta’s home, southbound State Route
(SR) 41 approaches an intersection with Ripley Pike Road.                      Just beyond the
intersection, a creek flows through a culvert directly under SR 41 and then continues
west, parallel to Ripley Pike Road. SR 41 curves slightly to the left as it crosses over
the culvert.
       {¶ 5} It had rained heavily earlier in the day and the creek had become swollen
with rainwater which then began to flow quite rapidly through the culvert. As Shane
proceeded south on SR 41 toward Ripley Pike Road, his vehicle crested a small hill and
then headed down a slope toward the intersection. Shane suddenly lost control of the
vehicle. The Corolla left the roadway and skidded approximately 35 feet in the grass
where it crashed through a fence as it slid toward the swollen creek. According to an
eyewitness, the Corolla teetered briefly on the north bank of the creek before
overturning and sliding into the water.
       {¶ 6} The Corolla was swept a short distance downstream by the force of the
current where it became wedged in the culvert, just below the roadway.                    Roberta
testified that she was swept out of the vehicle and into the flooded creek before she was
able to free Marlee Grace from her car seat. Roberta was able to stay afloat long
enough to pass through the culvert and then latch on to some debris lodged in the bank
of the creek, where she was later found and rescued.
       {¶ 7} Rescue personnel arrived at the scene only minutes after the Corolla
plunged into the creek. Marlee Grace’s lifeless body was found in the vehicle still
strapped into her car seat. Efforts to revive her were unsuccessful. Shane’s body was
found two to three miles downstream.1
       {¶ 8} In order for plaintiff to prevail under a theory of negligence, plaintiff must
establish that ODOT owed the decedent a duty of care, that ODOT breached that duty,
and that plaintiff suffered damages as a proximate result thereof.                     Strother v.
Hutchinson (1981), 67 Ohio St.2d 282.            ODOT has a general duty to maintain its
highways in a reasonably safe condition for the traveling public. Knickel v. Dept. of
Transportation (1976), 49 Ohio App.2d 335. However, ODOT is not an insurer of the

       1
        The Estate of Shane Morgan filed a companion case against ODOT on June 7, 2006, Case No.
2006-03991. By entry dated April 4, 2007, the two cases were combined for trial. A separate decision
has been issued in Case No. 2006-03991.
safety of its highway. See Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App.3d
723.
       {¶ 9} Pursuant to R.C. 5501.11(A), ODOT is responsible for establishing “state
highways on existing roads, streets, and new locations and [to] construct, reconstruct,
widen, resurface, maintain, and repair the state system of highways and the bridges and
culverts thereon.” (Emphasis added.) Plaintiff alleges that ODOT was negligent in
failing to maintain the roadway, bridge, and culvert in a reasonably safe condition for the
traveling public and that such failure proximately caused the death of Marlee Grace.
For the following reasons, the court finds that plaintiff has failed to prove negligence.
       {¶ 10} Plaintiff first alleges that defendant breached its duty to maintain the
bridge and culvert in a reasonably safe condition for the traveling public by failing to
correct the high water problem that arose during periods of heavy rainfall. As a general
rule, ODOT is liable for damages caused by defects, or dangerous conditions on state
highways where it has notice of the condition, either actual or constructive. McClellan v.
Ohio Dept. of Transp. (1986), 34 Ohio App.3d 247, paragraph one of the syllabus.
       {¶ 11} The weight of the evidence in this case shows that the culvert in question
had, on numerous occasions since it was first constructed, become clogged with debris
which, in periods of exceptional rainfall, caused water to flow out of the creek bed and
onto the roadway. The evidence at trial also permits the inference that ODOT either
knew or should have known of these prior occurrences. Plaintiff contends that ODOT’s
knowledge of the hazard created by the flooding of SR 41 gave rise to a duty on the part
of ODOT to reconstruct the bridge in such a manner as to prevent flood water from
spilling out onto SR 41. According to plaintiff, ODOT’s failure to do so establishes a
lack of due care.
       {¶ 12} In McClellan, supra, plaintiff lost control of her vehicle when she
encountered high water that had collected in a slight swale adjacent to a roadside
culvert.   She suffered personal injuries when her vehicle left the roadway and
overturned.   The trial court granted ODOT’s motion for summary judgment due to
plaintiff’s failure to present any evidence that ODOT had either actual or constructive
notice of the hazard. The court of appeals affirmed the trial court. In so doing, the court
of appeals noted that, if ODOT had either actual or constructive notice of the hazard,
then ODOT would have had a duty “to do something about it, such as signs warning of
high water, increasing the size of the ditch or the culvert, or reducing the growth of
vegetation.” Id. at 249. Thus, while the court determined that ODOT’s maintenance
duties required it to address hazardous high water problems upon receiving notice of
such problems, the court was careful not to impose a duty upon ODOT to reconstruct
the highway in order to eliminate the problem.
       {¶ 13} In this case, the evidence shows that ODOT had notice that, from time to
time during periods of heavy rain, high water flooded SR 41 in the area where the
accident occurred. The evidence also shows that Shane was familiar with this particular
stretch of SR 41 inasmuch as it was the most direct route between Angela’s home and
his mother’s home. Robert Osmon, ODOT’s Adams County manager, testified that a
“high water” warning sign was located on SR 41 in advance of the intersection but he
was not certain if the sign was erected prior to 2005. More significantly, undisputed
evidence regarding ODOT’s maintenance of the roadway established that ODOT
maintenance personnel had cleared the culvert of debris just hours before the accident.
Moreover, all of the witnesses who had the opportunity to observe the conditions of the
roadway at or near the time of the accident testified that the creek had swelled with
rainwater and that the current was moving rapidly, but that the creek was not flowing
over SR 41. Thus, the evidence at trial established that the creek had not breached the
culvert on the date of the accident.
       {¶ 14} Plaintiff argues, in the alternative, that had ODOT elected to correct the
periodic high water problem on SR 41 by reconstructing the bridge, ODOT would have
also been legally required, in connection with such a project, to erect a guardrail at the
approach to the bridge. As will be discussed below, plaintiff contends that a guardrail
would have either prevented the accident altogether or, at a minimum, deflected the
Corolla away from the creek. However, having determined that ODOT’s knowledge of
the periodic high water problem did not give rise to a duty to reconstruct the roadway,
plaintiff’s legal argument lacks factual support. Consequently, if plaintiff is to recover
from defendant on a negligence theory, there must be proof of ODOT’s negligence with
regard to a hazardous condition that existed off the paved portion of the roadway.
      {¶ 15} In that regard, plaintiff contends that ODOT had a duty to erect a guardrail
at the approach to the bridge at Ripley Pike Road and SR 41 in order to ensure that
vehicles leaving the roadway would not plummet into the creek. Defendant argues that
Ohio law does not impose such a duty upon ODOT under the circumstances of this
case. The court agrees.
      {¶ 16} “The existence of a duty is fundamental to establishing actionable
negligence, without which there is no legal liability.” Adelman v. Timman (1997), 117
Ohio App.3d 544, 549. Determination of whether a duty exists is a question of law for
the court to decide. Mussivand v. David (1989), 45 Ohio St.3d 314, 318. The standard
of care required of ODOT in guardrail cases is “that of the current written standards in
effect at the time of the planning, approval or construction of the site and that, absent
such written standards, the standard is that of a reasonable engineer using accepted
practices at the time of construction.” (Emphasis added.) Longfellow v. Ohio Dept. of
Transp. (Dec. 24, 1992), Franklin App. No. 92AP-549.
      {¶ 17} The evidence shows that the stretch of SR 41 in question, including the
bridge and the culvert, was designed and constructed in 1939.        The weight of the
evidence also establishes that the roadway met all applicable design and safety
standards in existence at that time.      Safety and design standards have evolved
considerably since 1939 as evidenced by ODOT’s 1990 Location and Design Manual.
In fact, the parties agree that had this particular bridge been constructed in 2005,
ODOT’s Location and Design Manual would have required the erection of a steel beam
guardrail at the approach to Ripley Pike Road from southbound SR 41.
      {¶ 18} Former ODOT District 9 Studies Engineer and current District 9 Planning
Director, Gregory Baird, testified that he administers ODOT’s bridge inspection
program.   Baird testified that, pursuant to ODOT’s 2001 Bridge Inspection Manual,
every Ohio bridge must be inspected at least once every year.          Baird stated that
inspectors grade bridges pursuant to current design and safety standards regardless of
when they were built. In fact, the preprinted ODOT bridge inspection forms upon which
ODOT inspectors report their findings contain a section for the inspector to provide a
number grade for every item on ODOT’s current inventory for the structure. Each of the
completed bridge inspection reports admitted into evidence for the bridge at SR 41 and
Ripley Pike Road contains a space in which the inspector is to enter a number grade for
“1 steel beam guardrail.”
       {¶ 19} Plaintiff claims that ODOT had a duty to install such a guardrail inasmuch
as its own manual now requires such a safety device and because its own inspection
policies suggest that there should be a guardrail at the site. However, it is well-settled
that in the performance of road maintenance activities, ODOT has no duty to upgrade
the roadway in order to meet current design and safety standards. Rahman v. Ohio
Dept. of Transp., Franklin App. No. 05AP-439, 2006-Ohio-3013; Longfellow, supra;
Lunar v. Ohio Dept. of Trans. (1989), 61 Ohio App.3d 143, 147. Maintenance is said to
entail only the preservation of existing highway facilities, not the initiation of substantial
improvements. Rahman, supra, at ¶21 (reducing road width to permit better drainage is
road “maintenance” not a substantial improvement).
       {¶ 20} Plaintiff was unable to present any evidence that would permit the court to
conclude that a substantial improvement had been made to the bridge or the roadway at
any time prior to the 2005 accident. Absent such proof, the court must conclude that
ODOT was under no legal obligation to install a guardrail at the site.
       {¶ 21} Much of the evidence at trial concerned ODOT’s decision to forego
installation of a guardrail when the safety of the bridge was first questioned in 2000. On
September 25, 2000, there were two fatalities at the intersection when a vehicle
plunged into the creek at roughly the same location and under very similar
circumstances to the accident that claimed the lives of Shane and Marlee Grace.
Ultimately, a decision was made by certain ODOT personnel to forego installation of a
guardrail at that time. Plaintiff argues that had ODOT exercised better judgment and
erected the guardrail after the 2000 accident, Marlee Grace would still be alive today.
Thus, plaintiff contends that ODOT’s failure to erect the guardrail after the fatal crash of
2000 constitutes actionable negligence.
       {¶ 22} In response, ODOT produced various traffic records and reports which
showed that there were only four motor vehicle accidents at this particular intersection
in the 13-year period immediately prior to 2005, which included the fatal accident of
September 25, 2000. The same records showed that the September 25, 2000 accident
resulted in the only fatalities in that 13-year period. Additionally, the records establish a
traffic count of up to 1,900 vehicles per day on this stretch of SR 41. Thus, the accident
rate for this particular intersection was relatively low.
         {¶ 23} State Highway Patrol Trooper, Richard Gable, was on his way to another
call when he saw the Corolla floating upside down in the creek with its front end wedged
in the culvert. Gable testified that the creek was cresting one to two inches below the
top of the culvert and close to the top of its banks but that he had no difficulty seeing the
solid white line at the edge of the roadway even though it was still raining. Gable did
not consider the intersection to be a “high accident area” and he had knowledge of “only
a few minor accidents” at the site.
         {¶ 24} Plaintiff called Randy Walters, Village of Manchester Police Chief and
local firefighter, to testify about the hazardous conditions he observed at the intersection
of Ripley Pike Road and SR 41. Walters had been part of the road clean-up crew
following the fatal accident on September 25, 2000, and he was one of the original
responders to the 2005 crash. According to Walters, he called ODOT after the 2000
accident to complain about the flood waters that poured out over the culvert and onto
the surface of SR 41 “five to ten times per year.” During that conversation, Walters also
suggested that a guardrail be installed. Walters testified that he could not recall whom
he spoke with in 2000, but that he was sure that he received no return call. Walters
called ODOT again after the 2005 accident because he felt “something needed to be
done.”
         {¶ 25} Osman testified that he visited the intersection of Ripley Pike Road and
SR 41 on the Monday following the fatal accident that occurred on September 25, 2000.
His intention was to determine whether any maintenance issues existed at the site.
Although Osman determined that maintenance was not a problem, he did contact
Joseph Armstrong, an engineer who was employed by ODOT as District 9 Highway
Maintenance Supervisor, to discuss the possibility of installing a guardrail at the
approach to Ripley Pike Road from SR 41. At trial, Osman testified that he did not
recall receiving any response from Armstrong.          In his deposition, however, Osman
stated that Armstrong informed him that the traffic count on SR 41 in the area of Ripley
Pike Road did not justify immediate installation of a guardrail but that one would be
installed in conjunction with any future roadway upgrade. Armstrong could not recall
having such a conversation with Osman in 2000. Vaughn Wilson, ODOT District 9
Highway Management Administrator, testified that he was unaware of the fatal crash
that occurred at SR 41 and Ripley Pike Road on September 25, 2000, until he was told
of the incident by Osman following the 2005 accident involving the Morgans.
       {¶ 26} There is no dispute that, after the accident which claimed the lives of
Shane and Marlee Grace in 2005, Wilson authorized the installment of a steel beam
guardrail at the approach to SR 41 and Ripley Pike Road. According to Wilson, who is
now retired from his post at ODOT District 9, he made the decision to erect the guardrail
“in a very short time frame” following the 2005 accident.           Osman had received
numerous complaints about the safety of the intersection and many requests for the
installation of a guardrail, which he had passed on to Wilson. Wilson testified that the
primary reason he gave the “green light” to the upgrade was the public outcry for a
guardrail that arose out of the deaths of Shane and Marlee Grace.
       {¶ 27} Due to his perceived need for immediate action, Wilson subsequently
elected to circumvent customary ODOT procedures whereby he arranged for a local
contractor to install the guardrail. Wilson paid the costs of installation out of ODOT’s
“ding and dent fund.” Although Osman admitted that the fund was generally earmarked
for maintenance and repair work only, he admitted that, in the past, he had used the
fund to pay for the costs of a new guardrail when he felt that one was needed. Wilson
acknowledged that if he had employed proper channels in requesting a guardrail, it
likely would have taken six months for the process to be completed and he was not
convinced that the results of a required traffic study would have justified the immediate
construction of a guardrail at the location.
       {¶ 28} Armstrong did recall discussing the need for a guardrail at the site with
Wilson and Osman shortly after the fatal crash of 2005.          According to Armstrong,
neither he nor Wilson had the authority to approve a highway upgrade, such as the
installation of a new guardrail, without first consulting ODOT’s deputy director.
However, when he was questioned by counsel regarding Wilson’s subsequent decision
to approve the guardrail project without such consultation, he testified that he “thought it
was o.k.”
       {¶ 29} Ultimately a “Guardrail Repair Work Order” was issued on June 17, 2005,
in the total amount of $8,490. (Plaintiff’s Exhibit 14H.) The last page of said repair
order contains a “special note” stating “critical due to two fatalities @ Ripley Pike Rd.”
(Emphasis sic.)                            Plaintiff concedes that the installation of the
guardrail after the 2005 accident does not constitute an admission of negligence on the
part of ODOT. Indeed, the totality of the evidence fails to persuade the court that this
particular stretch of SR 41 was unreasonably dangerous. Nevertheless, even if the
court were to conclude, with the benefit of hindsight, that ODOT failed to exercise due
care when it decided to forgo installation of a guardrail after the fatal accident that
occurred in 2000, the doctrine of discretionary immunity shields ODOT from liability for
that decision.
       {¶ 30} “The language of R.C. 2743.02 that ‘the state’ shall ‘have its liability
determined * * * in accordance with the same rules of law applicable to suits between
private parties * * *’ means that the state cannot be sued for its legislative or judicial
functions or the exercise of an executive or planning function involving the making of a
basic policy decision which is characterized by the exercise of a high degree of official
judgment or discretion. However, once the decision has been made to engage in a
certain activity or function, the state may be held liable, in the same manner as private
parties, for the negligence of the actions of its employees and agents in the
performance of such activities.” (Emphasis added.) Reynolds v. State (1984), 14 Ohio
St.3d 68, 70. The doctrine of discretionary immunity “has been applied to immunize the
state from liability for discretionary decisions such as whether or not to install a traffic
signal at an intersection, [and] what type of traffic signal to install.” (Citations omitted.)
Young v. Univ. of Akron, Franklin App. No. 06AP-1022, 2007-Ohio-4663, ¶14.
       {¶ 31} As stated above, following the fatal accident in 2000, ODOT gave some
preliminary consideration to the installation of a guardrail at the site but decided to forgo
installation until such time as the site was scheduled for an upgrade.           Defendant’s
expert, Duane Ferguson, testified that the decision whether to install a guardrail at a
particular site is a matter of engineering judgment inasmuch as an improperly positioned
or installed guardrail can be a roadside hazard in and of itself. Even plaintiff’s own
expert, Lester Auble, P.E., admitted that the decision to install a guardrail around a
particular roadside hazard requires a determination whether the risk of harm arising
from vehicles striking the guardrail is less than the risk of harm arising from vehicles
contacting the hazard.
      {¶ 32} The court finds that such a decision was clearly an exercise of an
executive or planning function that involved the making of a basic policy decision which
was characterized by the exercise of a high degree of official judgment or discretion.
Consequently, ODOT cannot be held liable to plaintiff for any harm arising from such
exercise of its decision-making authority.
      {¶ 33} Defendant argues, in the alternative, that even if it had erected a guardrail
as plaintiff suggests, the speed of the Corolla as it left the roadway near Ripley Pike
Road was so excessive in light of the road conditions that a guardrail would not have
prevented the vehicle from entering the creek.        Defendant’s expert opined that the
Corolla was traveling at 70 miles per hour (mph) when it left the roadway and that, at
such a speed, the Corolla would have traveled over the guardrail and still landed in the
creek. The parties agree that the posted speed limit for this particular stretch of SR 41
is 55 mph. Conversely, plaintiff contends that the vehicle was traveling at only 45 mph
when it left the paved portion of the roadway and only 19 mph when it reached the
grassy area between the roadway and the creek. According to plaintiff’s expert, the
presence of a properly installed guardrail would have prevented the Corolla from
reaching the creek.
      {¶ 34} The court received a sufficient quantity of evidence which, if believed,
would have supported either of the conflicting expert opinions regarding the speed of
the Corolla. However, having determined that ODOT had no duty to erect a guardrail or
to otherwise reconstruct the site prior to the fatal accident, and having further
determined that ODOT was immune from liability for its decision to forgo the installation
of a guardrail in 2000, a specific determination of vehicle speed is unnecessary.
      {¶ 35} As an alternative theory of liability, plaintiff alleges that, at the time of the
accident, the intersection of SR 41 and Ripley Pike Road was a qualified nuisance and
that ODOT breached a duty it owed to plaintiff when it failed to abate the nuisance. A
qualified nuisance is “anything lawfully but so negligently or carelessly done or
permitted as to create a potential and unreasonable risk of harm which, in due course,
results in injury to another.” Taylor v. Cincinnati (1944), 143 Ohio St. 426, at 445. “[A]
civil action based upon the maintenance of a qualified nuisance is essentially an action
in tort for the negligent maintenance of a condition, which, of itself, creates an
unreasonable risk of harm, ultimately resulting in injury.        The dangerous condition
constitutes the nuisance. The action for damages is predicated upon carelessly or
negligently allowing such condition to exist.” Rothfuss v. Hamilton Masonic Temple Co.
(1973), 34 Ohio St.2d 176, 180. Under a claim of qualified nuisance, the allegations of
nuisance and negligence merge to become a negligence action. Allen Freight Lines,
Inc. v. Consol. Rail Corp. (1992), 64 Ohio St.3d 274.
       {¶ 36} Given the court’s findings of fact and conclusions of law regarding ODOT’s
liability to plaintiff under a negligence theory, any further discussion of the liability issue
in the context of qualified nuisance is unnecessary.
       {¶ 37} For the foregoing reasons, the court finds that plaintiff has failed to prove
negligence by the preponderance of the evidence and, accordingly, judgment shall be
rendered in favor of ODOT.




                                                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




THE ESTATE OF MARLEE GRACE MORGAN

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant
      Case No. 2006-03869

Judge Joseph T. Clark
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.



                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge

cc:


John P. Reichley                            Michael E. Cassity
Peter E. DeMarco                            Robin J. Levine
Assistant Attorneys General                 107 East Main Street
150 East Gay Street, 18th Floor             P.O. Box 478
Columbus, Ohio 43215-3130                   Mt. Orab, Ohio 45154-9464

LP/cmd
Filed March 22, 2010
To S.C. reporter April 5, 2010
