[Cite as Pasquino v. Ohio Dept. of Transp., Dist. 12, 2010-Ohio-2034.]

                                       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




DIANA PASQUINO

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

        Defendant

        Case No. 2009-08446-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Diana Pasquino, stated that she was traveling west on State
Route 2 in Willoughby, Ohio in Lake County, “when a rock hit my hood of the car”as her
2002 Acura passed under the Lost Nation Road bridge spanning the roadway. Plaintiff
asserted the object that struck her car fell from the bridge spanning the roadway.
Plaintiff pointed out “[t]here is a lot of road construction to widen the bridges and roads”
in the area of her described damage incident. Plaintiff implied the rock which damaged
the hood of her vehicle emanated from construction activity on the Lost Nation Road
bridge. In her complaint, plaintiff recorded her damage event occurred at approximately
3:00 p.m. on Sunday, October 18, 2009.1 Also, in her complaint, plaintiff included a
repair estimate for her car dated October 6, 2009 in the amount of $1,129.15. Plaintiff
implied the damage to her vehicle was proximately caused by negligence on the part of
defendant, Department of Transportation (ODOT), in maintaining a hazardous condition
in a roadway construction zone. Plaintiff seeks damage recovery in the amount of

        1
        Plaintiff filed a response indicating her described property damage event occurred on
September 18, 2009, a Friday. The court shall presume plaintiff’s described damage incident occurred at
$1,129.15, the stated cost of automotive repair. The filing fee was paid.
       {¶ 2} Defendant acknowledged that the area where plaintiff’s described damage
incident occurred was located within the limits of a working construction project under
the control of ODOT joint venture contractors, Anthony Allega Cement Contractor/Great
Lakes Construction (Allega/Great Lakes). Defendant explained this particular project
“dealt with improving SR 2 by grading, draining, paving with asphalt concrete or an
asphalt concrete base in part, noise barrier, reinforced retaining walls, MSE walls and
rehabilitating existing structures between milepost 3.32 to 7.75 in Lake County.”
Defendant located plaintiff’s damage occurrence from her description at milepost 5.42
on State Route 2, an area within the limits of the construction zone. Defendant asserted
that Allega/Great Lakes, by contractual agreement, were responsible for any damage
occurrences or mishaps within the limits of the construction zone. Therefore, ODOT
argued either Allega or Great Lakes should be 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. All work by the contractor was to be
performed in accordance with ODOT mandated specifications and requirements and
subject to ODOT approval.
       {¶ 3} 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, 77, 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 Steven v. Indus. Comm. (1945), 145 Ohio
St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed.

approximately 3:00 p.m. on Friday September 18, 2009.
       {¶ 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. 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.
       {¶ 5} Alternatively, defendant argued either ODOT nor Allega/Great Lakes had
any knowledge “of rocks falling from the Lost Nation Road bridge on SR2" prior to
plaintiff’s described damage occurrence. ODOT records indicate no calls or complaints
were received regarding falling rock debris prior to plaintiff’s incident. Defendant related
ODOT “first learned of plaintiff’s alleged incident on October 28, 2009" when a copy of
her complaint was served by this court. Defendant contended plaintiff failed to produce
evidence establishing that her property damage was attributable to any conduct on
either the part of ODOT or joint venture contractors, Allega/Great Lakes. Defendant
asserted plaintiff did not offer any evidence to prove ODOT negligently maintained the
roadway


bridge. Defendant submitted photographs depicting the Lost Nation Road bridge which
show protective fencing on the bridge spanning State Route 2. Defendant stated “every
precaution has been made to keep rocks and other debris from falling onto westbound
SR2.” Defendant suggested any falling rock emanating from the bridge that was open
to public traffic “could have come from a third party” not affiliated with either ODOT or
the joint venture contractors.
       Defendant submitted a letter from Allega representative Carmen C. Carbone,
regarding work performed by Allega/Great Lakes on September 18, 2009 in the vicinity
of the Lost Nation Road bridge. Carbone acknowledged both Allega and Great Lakes
personnel were working on State Route 2 in the vicinity of the Lost Nation Road bridge
on September 18, 2009. Carbone recorded “at NO time was any work being performed
by the prime contractors and our subcontractors on the bridge, bridge roadway or bridge
decking on or above State Route 2 on the date of September 18, 2009.” Carbone
denied any construction vehicles “were utilizing” the bridge on September 18, 2009.
       Also submitted was a daily report produced by Allega for construction activity on
State Route 2 on September 18, 2009.          According to this daily report and other
submitted roadway diagrams, construction trucks hauled material on State Route 2, but
the truck route covered did not include traveling over the Lost Nation Road bridge. The
daily report noted Allega crews were working on Lost Nation Road north of the bridge
“installing exfiltration trench boxes, type B.” However, it was recorded in the report that
“[n]o trucking or excavation was performed during the installation of these boxes.”
       Defendant provided a copy of an e-mail from Great Lakes Safety Director,
William Hocevar, regarding work performed by that contractor on September 18, 2009.
Hocevar offered the following information:
       “Great Lakes was not working on or near the vicinity of Lost Nation Road the day
of the alleged accident. Furthermore, we had not been working on or near that bridge
since August 6, 2009, where we performed backfill operations on the abutments.
Lastly, we have never known of any complaints, injuries, accidents or other losses
associated with the Great Lakes’ construction of the Lost Nation Road Bridge prior to
this notification.”
       Hocevar did confirm “[t]he only Great Lakes Construction traffic crossing Lost
Nation Rd. Bridge that day (September 18, 2009) was a nine yard load of concrete” for
work being performed on a “forward abutment wingwall” on a roadway ramp.              The
concrete load was transported by one truck that did not make a return trip over the
bridge.
       Plaintiff filed a response disputing the assertions that ODOT contractors did not
have any traffic on the Lost Nation Road bridge on September 18, 2009 with the
exception of one vehicle. Plaintiff stated Allega/Great Lakes “have been working on that
highway since March of 2009 (and) [t]hat bridge area has been closed on the east side
so that they can work and travel through that area.” Plaintiff observed construction
trucks hauling “dirt etc” are continually traveling in the area. Plaintiff recalled she was
traveling west on State Route 2 in the far right lane when her damage incident occurred
in the vicinity “where the trucks were working.” Plaintiff pointed out the rock that fell on
the hood of her car “could come from anywhere in that area.” Plaintiff did not produce
sufficient evidence to clarify the origin of the rock debris that damaged her car.
       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 her vehicle was directly caused by
constructive activity of ODOT’s contractor, on September 18, 2009.               Despite her
assertions, plaintiff has failed to prove the debris that damaged her car emanated from
construction activity.
       “If an injury is the natural and probable consequence of a negligent act and it is
such as should have been foreseen in light of all the attending circumstances, the injury
is then the proximate result of 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.
       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 an 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. Plaintiff has 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; Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-AD,
2008-Ohio-4190.
      Evidence in the instant action tends to show plaintiff’s damage was caused by an
act of an unidentified third party not affiliated with ODOT. Defendant has denied liability
based on the particular premise it had no duty to control the conduct of a third person
except in cases where a special relationship exists between defendant and either
plaintiff or the person whose conducts needs to be controlled. Federal Steel & Wire
Corp. v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However,
defendant may still bear liability if it can be established if some act or omission on the
part of ODOT or its agents was the proximate cause of plaintiff’s injury. Plaintiff has
failed to prove, by a preponderance of the evidence, that defendant failed to discharge a
duty owed to her, or that her injury was proximately caused by defendant’s negligence.
Plaintiff failed to show the damage-causing object at the time of the damage incident
was connected to any conduct under the control of defendant or its agents or any
negligence on the part of defendant or its agents. Herman v. Ohio Dept. of Transp.
(2006), 2006-05730-AD.




                               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
DIANA PASQUINO

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

        Defendant

         Case No. 2009-08446-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:

Diana Pasquino                                    Jolene M. Molitoris, Director
35975 Sandy Knoll                                 Department of Transportation
Eastlake, Ohio 44095                              1980 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
1/11
Filed 1/27/10
Sent to S.C. reporter 5/7/10
