[Cite as Megla v. Ohio Dept. of Transp., 2011-Ohio-3856.]



                                      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




JODI F. MEGLA

       Plaintiff

       V.

OHIO DEPARTMENT OF
TRANSPORTATION

       Defendant


        Case No. 2010-11552-AD


Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Jody F. Megla, states she was traveling “east bound toward
Willoughby on St. Rt. 2” and had to exit the freeway for gas at the St. Rt. 91 exit.
Plaintiff turned right onto St. Rt. 91 and proceeded to turn left across the two
southbound lanes of St. Rt. 91 when she encountered several large chunks of heavy,
metal debris all over the road “between the confusing array of barrels set up to help
direct traffic.” Plaintiff asserts she “attempted to avoid the large pieces” of debris but
she was unable to and ended up “running right over the [debris] but skidding into the
cement wall & then back into the median.” Plaintiff relates extensive damage was done
to her 1999 Ford Escort including the tires, tire rims, undercarriage, cracked windshield,
and multiple dents on the exterior of the vehicle.
        {¶ 2} On December 13, 2010, plaintiff submitted additional documentation
including a copy of the Eastlake police report and she recalled the incident occurred
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Case No. 2006-03532-AD                         -2-                   MEMORANDUM DECISION



around midnight on Friday September 3, 2010 or shortly thereafter in the early morning
hours of September 4, 2010. The Eastlake police officer who took the report related the
debris plaintiff struck was “part of a construction sign” and the officer recalled, “[w]e also
took a few other reports that night for the same thing.”
        {¶ 3} Plaintiff asserts that the damage to her vehicle was proximately caused by
negligence on the part of defendant, Department of Transportation ("DOT"), in
maintaining an improperly anchored sign on a highway. Plaintiff seeks damages in the
amount of $1,245.36 for automotive repairs. The filing fee was paid.
        {¶ 4} Defendant denied liability in this matter contending it did not have any
knowledge concerning debris on SR 91 prior to plaintiff’s property-damage incident.
Defendant determined the roadway area where plaintiff's incident occurred was within
the limits of a working construction project under the control of DOT contractor, Anthony
Allega Cement Contractor/Great Lakes Construction (Allega).1 Defendant explained the
construction project dealt “with grading, draining, paving * * * , noise barrier, reinforced


        1
         Although Allega insists the incident happened in an area that was under the control of Karvo
Paving Company, the court finds sufficient evidence has been submitted to establish plaintiff’s accident
occurred within the limits of the project associated with Allega.
concrete retaining walls, * * * between mileposts 3.32 and 7.75 on SR 2 in Lake County.
This project, also, widened parts of SR 91 in Lake County.” Defendant contended
Allega, by contractual agreement, was responsible for maintaining the roadway within
the construction zone and consequently DOT had no responsibility for any damage or
mishap on the roadway within the construction project limits. Therefore, DOT argues
Allega is the proper party defendant in this action. Defendant implied 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. Defendant noted the contractor did not report evidence of debris or other
problems at the site on September 3 or 4, 2010.
      {¶ 5} In addition, defendant notes plaintiff did not file a police report until
September 15, 2010, eleven days after the incident. Thus, according to defendant, “it
(is) difficult to determine whether the debris was from a passing truck, or could be
attributed to the construction project.” Furthermore, defendant contended plaintiff failed
to introduce
      {¶ 6} sufficient evidence to prove her damage was proximately caused by
roadway conditions created by DOT or its contractor. All construction work was to be
performed in accordance with DOT requirements and specifications and subject to DOT
approval.
      {¶ 7} Plaintiff did not file a response.
      {¶ 8} Defendant presented a weather condition summary which indicates wind
speed maximums were 14-20 mph with maximum gusts of 25 mph during the evening
of September 3 and during the morning hours of September 4, 2010, winds were
gusting to 30 mph. Defendant also submitted copies of Eastlake Police Department “call
for service” reports noting debris on the roadway at SR 91/SR2 from September 3,
2010, at 10:30 p.m. (construction signs blown over in the roadway), and 11:13 p.m.
(construction signs in the road again), and on September 4, 2010, at 12:20 a.m.
(construction sign in roadway, car ran it over and got flat tires, [reporting officer]
removed a sign).
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Case No. 2006-03532-AD                  -4-              MEMORANDUM DECISION



      {¶ 9} 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.
      {¶ 10} 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 DOT 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.
      {¶ 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 an unreasonable risk of
harm is the precise duty owed by DOT to the traveling public both under normal traffic
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} For plaintiff to prevail on a claim of negligence, she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her injuries. Armstrong v. Best Buy
Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573, ¶8, citing Menifee v. Ohio Welding
Products, Inc. (1984), 15 Ohio St. 3d 75, 15 OBR 179, 472 N.E. 2d 707. Plaintiff has
the burden of proving, by a preponderance of the evidence, that she 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 Stevens v. Indus. Comm'n. (1945), 145 Ohio St. 198, 30 O.O.
415, 61 N.E.2d 198, approved and followed.
      {¶ 13} 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.
Defendant professed liability cannot be established when requisite notice of the
damage-causing conditions cannot be proven. Generally, defendant is only liable for
roadway conditions of which it has notice, but fails to correct. Bussard v. Dept. of
Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR 64, 507 N.E. 2d 1179.
      {¶ 14} In the instant claim, plaintiff failed to produce sufficient evidence to
determine her property damage was caused by a sign that was negligently installed or
inspected by defendant or its agents.
      {¶ 15} Plaintiff has not shown, by a preponderance of the evidence, that
Case No. 2006-03532-AD                   -6-               MEMORANDUM DECISION




Case No. 2006-03532-AD                   -6-               MEMORANDUM DECISION



defendant failed to discharge a duty owed to plaintiff, or that plaintiff’s injury was
proximately caused by defendant’s negligence. Plaintiff failed to show that her damage
was connected to any conduct under the control of defendant or that there was any
negligence on the part of defendant or its agents. Taylor v. Transportation Dept. (1998),
97-10898-AD; Weininger v. Department of Transportation (1999), 99-10909-AD;
Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD.             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




JODI F. MEGLA
        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-11552-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:

Jodi F. Megla                              Jerry Wray, Director
8832 Overlook Drive Apt. 3                 Department of Transportation
Kirtland, Ohio 44094                       1980 West Broad Street
                                           Columbus, Ohio 43223
SJM/laa
3/30
Filed 4/25/11
Sent to S.C. reporter 8/5/11
