[Cite as Lobert v. Ohio Dept. of Transp., 2011-Ohio-3966.]



                                       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




MEGAN LOBERT

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-13130-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Megan Lobert, filed this action against defendant, Ohio Department
of Transportation (ODOT), alleging that her vehicle was damaged on November 11 or
12, 2010, as a proximate result of negligence on the part of ODOT in maintaining a
hazardous condition in a roadway construction area on the Hamilton Road ramp to I-
270 northbound in Franklin County. Specifically, plaintiff explained that “I did not see,
until it was too late, that the ramp for I-270 North was elevated because it was paved
(versus Hamilton- which is unpaved). I started to accelerate to go on the ramp and
slammed into the raised portion of the ramp causing over $300 of damage to my car.”
According to plaintiff, there was no caution sign warning of the change in elevation and
plaintiff estimated “the difference between Hamilton Rd. and the ramp was
approximately 3.5 to 4 inches.” Plaintiff seeks recovery of damages in the amount of
$326.47, the stated cost of automotive repair. The filing fee was paid.
        {¶ 2} Defendant acknowledged that the area where plaintiff’s damage event
occurred was located within the limits of a construction project under the control of
ODOT contractor, Complete General Construction Company (Complete). Defendant
explained that the particular project dealt with “grading, draining, paving with asphalt
concrete on an asphalt concrete base and widening of I-270 ramps at Hamilton Road
and median improvement on Hamilton Road between milepost 37.04 and 37.55.”
       {¶ 3} Defendant asserted that Complete, by contractual agreement, was
responsible for any occurrences or mishaps within the construction zone. Therefore,
ODOT argued that Complete 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, requirements, and
subject to ODOT approval.
       {¶ 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.
       {¶ 5} 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 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, supra.
       {¶ 6} 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 contention 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.
      {¶ 7} Defendant contended that plaintiff failed to produce evidence establishing
her property damage was attributable to conduct on either the part of ODOT or
Complete.     Defendant advised that neither ODOT nor Complete received any
complaints about uneven pavement or road surfaces prior to plaintiff’s incident. With its
investigation report defendant submitted a letter from Complete’s safety director, Al
Tambini , who stated that bump signs were placed in several locations throughout the
project, milling operations would have taken the asphalt down only 1.5 inches, not the
3.5 to 4 inches suggested by plaintiff, and that asphalt paving operations for the project
were completed by November 9, 2010.
      {¶ 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
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.
      {¶ 9} Plaintiff has alleged that the damage to her vehicle was directly caused by
construction activity of ODOT’s contractor; however, 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-4190. Plaintiff has not provided evidence to prove that the roadway
area was particularly defective or hazardous 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 incident at 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.
       {¶ 10} “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. 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} Evidence available tends to point out that the roadway was maintained
properly under ODOT specifications.       No photographic evidence was submitted to
establish that the transition was not ramped properly and visible to the traveling public.
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} Plaintiff has not proven that defendant maintained a hidden roadway
defect. See Sweney v. Ohio Dept. of Transp., Dist. 8, Ct. of Cl. No. 2009-03649-AD,
2009-Ohio-6294. Thus, it appears that the cause of the property damage claimed was
the negligent driving of plaintiff, Megan Lobert. See Wieleba-Lehotzky v. Ohio Dept. of
Transp., Dist. 7, Ct. of Cl. No. 2004-03918-AD, 2004-Ohio-4129.             Consequently,
plaintiff’s claim is denied.
                                 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




MEGAN LOBERT

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-13130-AD

Clerk Miles C. Durfey


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.



                                                  ________________________________
                                                  MILES C. DURFEY
                                                  Clerk

Entry cc:

Megan Lobert                                      Jerry Wray, Director
662 Picadilly Court                               Department of Transportation
Gahanna, Ohio 43230                               1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
4/15
Filed 5/5/11
Sent to S.C. reporter 8/10/11
