[Cite as Rohde v. Ohio Dept. of Transp., 2011-Ohio-3955.]



                                      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




ROBERT N. ROHDE

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-12109-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Robert Rohde, asserted that on August 11, 2010, he sustained
substantial damage to his vehicle when he “encountered about 2 feet of flowing water
from the center median” in a roadway construction area on Interstate 77 northbound,
“just past the Brecksville Route 82 exit.” Specifically, plaintiff related that “water was
just flowing across the highway. The water was full of landscaping (debris), mostly hay.
There was so much water it almost stopped my vehicle.”             Plaintiff stated that the
damage to his vehicle is extensive, that hay is compacted into all areas, and that the
vehicle is not drivable.
        {¶ 2} Plaintiff submitted copies of photographs depicting various areas of the
underside of his vehicle containing large amounts of hay or straw-like material. Plaintiff
contended that the damage to his automobile was proximately caused by negligence on
the part of defendant, Department of Transportation (DOT), in failing to maintain
Interstate 77 free of debris during roadway construction. Consequently, plaintiff filed
this complaint seeking to recover damages in the amount of $2,497.00 representing the
estimated cost for automotive repair. Plaintiff paid the $25.00 filing fee.
      {¶ 3} 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 DOT contractor, Kokosing Construction Company (Kokosing). Defendant explained
that the particular construction project “dealt with grading, draining and paving with
asphalt concrete * * * on I-77 between * * * state mileposts 148.98 to 155.55 in
Cuyahoga County.” All project work was to be performed by Kokosing in accordance
with DOT mandated requirements and specifications and subject to DOT inspection
approval.    Defendant asserted that Kokosing, by contractual agreement, was
responsible for maintaining the roadway within the construction project limits.
Therefore, defendant argued that Kokosing is the proper party defendant in this action.
      {¶ 4} Defendant implied that all duties, such as the duty to warn, the duty to
maintain, the duty to inspect, and the duty to repair defects, were delegated when an
independent contractor takes control over a particular roadway section. The duty of
DOT to maintain the roadway in a safe drivable condition is not delegable to an
independent contractor involved in roadway construction. DOT may bear liability for the
negligent acts of an independent contractor charged with roadway construction. See
Cowell v. Ohio Department of Transportation, Ct. of Cl. No. 2003-09343-AD, jud, 2004-
Ohio-151. Furthermore, despite defendant’s contentions that DOT did not owe any duty
in regard to the construction project, defendant was charged with a duty 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 denied that either DOT or Kokosing had any
“notice of the hay debris on I-77 prior to plaintiff’s incident.” Defendant asserted that
DOT records show no calls or complaints were received regarding the hay debris
despite the fact “that this portion of I-77 has an average daily traffic volume of between
67,700 and 74,280.”
      {¶ 6} 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.
      {¶ 7} 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 his vehicle was directly caused by
construction activity of DOT’s contractor on August 11, 2010.
      {¶ 8} Defendant contended that plaintiff failed to offer sufficient evidence to
prove his property damage was caused by negligent roadway maintenance.
Additionally, defendant contended that plaintiff failed to produce evidence to establish
that his damage was proximately caused by conduct attributable to DOT or Kokosing.
Defendant submitted a daily job report from Kokosing which documents the crew started
work at 7:00 p.m. on August 11, 2010, however the work was suspended due to heavy
rains. The report states “rained out 8/11/10 at 11:30, cleaned debris from highway and
82 from rain.” ODOT’s Project Engineer, Scott Slack, also confirmed that on August 11,
2010, “[h]eavy rains tonight forced a total closure of NB I-77 from 11:30 p.m. to 12:10
a.m. to allow Kokosing to remove straw from curb grates and No. 8 cb in median north
of Harris Road.”
      {¶ 9} Defendant submitted a copy of a written statement from Kokosing Project
Superintendent, Kerry Hart, regarding the Kokosing work project on Interstate 77. Hart
asserted that “1. ODOT/EPA requires (directs) us to protect cb’s from silt w/silt fence.
We did that. 2. ODOT/EPA requires (directs) us to seed and mulch (Straw) areas to
prevent eroding. We did that. 3. We can not control the amount of rain that comes
down or the fact that the rainfall cannot drain fast enough through the devices we are
required to do by ODOT/EPA.” Thus, defendant contended Kokosing “employees were
following the instruction from ODOT/EPA by putting up the silt fences and lying down
the straw to prevent eroding. A heavy rain moved the hay which was not foreseen.”
Defendant maintained that it performed its duty in keeping the roadway reasonably safe
for travel.
       {¶ 10} For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his injuries.        Armstrong v. Best Buy
Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E. 2d 1088, ¶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 he 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. 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.
       {¶ 11} 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 DOT
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 DOT to the traveling public under both 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.
       {¶ 12} Plaintiff, in the instant claim, suggested that the damage to his automobile
was caused by the negligence of DOT’s contractor in the presence of DOT’s engineer.
Defendant disputed plaintiff’s allegation that his property damage was caused by
negligent performance of roadway construction activities or negligent inspection.
       {¶ 13} “If an 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.   Plaintiff has failed to offer sufficient proof to establish that his property
damage was caused by defendant or its agents breaching any duty of care in regard to
roadway construction.    Evidence available seems to point out that the construction
operations were performed properly under DOT specifications. Plaintiff failed to prove
that his damage was proximately caused by any negligent act or omission on the part of
DOT 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, Nesselhauf v. Ohio Dept. Of Transp., Ct. of Cl. No. 2008-11061-AD,
2009-Ohio-5107.
                                 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




ROBERT N. ROHDE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-12109-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:

Robert N. Rohde                                   Jerry Wray, Director
6922 Chapel Hill Drive                            Department of Transportation
Brecksville, Ohio 44141                           1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
4/7
Filed 4/27/11
Sent to S.C. reporter 8/10/11
