[Cite as Jordan v. Ohio Dept. of Transp., Dist. 8, 2010-Ohio-4583.]

                                       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




KASI JORDAN

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 8

        Defendant

        Case No. 2010-01336-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On October 17, 2009, at approximately 9:50 a.m., plaintiff, Kasi Jordan,
was traveling north on Interstate 75 “near mile marker 35-38" in Warren County, when a
passing truck drove over “a silver object” on the roadway causing the object to be
propelled into the path of the vehicle plaintiff was driving, a 2003 Mercedes-Benz E500.
The propelled object struck the right front fender of the 2003 Mercedes-Benz E500
causing substantial body damage to the vehicle. Plaintiff implied that the damage to the
automobile was proximately caused by negligence on the part of defendant, Department
of Transportation (ODOT), in failing to maintain the roadway free of hazardous debris
conditions. Plaintiff filed this complaint seeking to recover $1,796.73, the stated cost of
automotive repair incurred resulting from the October 17, 2009 described incident. The
filing fee was paid.
        {¶ 2} Defendant explained that the roadway area where plaintiff’s incident
occurred was within the limits of a working construction project under the control of
ODOT contractor, John R. Jurgensen Company (Jurgensen). Defendant related that
the particular construction project “dealt with resurfacing with grading, draining, paving
with asphalt concrete on I-75, interchange construction of SR 122 and bridge
replacements at several locations in Warren County.”        According to defendant, the
construction project limits “corresponds to state mileposts 32.10 to 40.50” on Interstate
75 and plaintiff’s damage incident occurred “between milemarker 35-38,” which is
located within the project limits. Defendant asserted that this particular construction
project was under the control of Jurgensen and consequently ODOT had no
responsibility for any damage or mishap on the roadway within the construction project
limits. Defendant argued that Jurgensen, by contractual agreement, was responsible
for maintaining the roadway within the construction zone. Therefore, ODOT contended
that Jurgensen 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. Furthermore, defendant contended that plaintiff failed to
introduce sufficient evidence to prove her damage was proximately caused by roadway
conditions created by ODOT or its contractors.         All construction work was to be
performed in accordance with ODOT requirements and specifications 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.
       {¶ 4} Defendant had 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
contentions 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 the particular construction work. See Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
      {¶ 5} Alternatively, defendant denied that neither ODOT nor Jurgensen had any
notice “of debris lying around” prior to plaintiff’s property damage event. Defendant
pointed out that ODOT records “indicate no complaints were received at the Warren
County Garage for I-75 regarding debris prior to (plaintiff’s) incident.” Defendant argued
that plaintiff failed to produce any evidence to prove the damage-causing debris
condition was attributable to any conduct on either the part of ODOT or Jurgensen.
Defendant submitted a copy of an e-mail from Jurgensen representative Jodi Lantz,
who reported Jurgensen personnel were “only performing dirt work in the area” on
October 17, 2009. Lantz suggested the debris that damaged plaintiff’s vehicle was a
“piece of metal/pipe” that “came from a passing vehicle.”
      {¶ 6} 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
under both 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.
      {¶ 7} Ordinarily 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. 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. There is no evidence
to show that any construction activity caused the debris condition.
       {¶ 8} Generally, in order to recover in any suit involving injury proximately
caused by roadway conditions including debris, plaintiff must prove that either:        1)
defendant had actual or constructive notice of the debris and failed to respond in a
reasonable time or responded in a negligent manner, or 2) that defendant, in a general
sense, maintains its highways negligently.      Denis v. Department of Transportation
(1976), 75-0287-AD. Plaintiff has not produced any evidence to indicate the length of
time that the debris was present on the roadway prior to the incident forming the basis
of this claim. No evidence has been submitted to show that defendant had actual notice
of the debris. Additionally, the trier of fact is precluded from making an inference of
defendant’s constructive notice, unless evidence is presented in respect to the time that
the debris appeared on the roadway. Spires v. Ohio Highway Department (1988), 61
Ohio Misc. 2d 262, 577 N.E. 2d 458.         There is no indication that defendant had
constructive notice of the debris. Plaintiff has not produced any evidence to infer that
defendant, in a general sense, maintains its highways negligently or that defendant’s
acts caused the defective condition.     Herlihy v. Ohio Department of Transportation
(1999), 99-07011-AD. Plaintiff has failed to prove that 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.
       {¶ 9} Defendant has contended plaintiff did not offer evidence to prove her
damage was caused by conduct attributable to either ODOT or Jurgensen. Defendant
asserted the metal debris plaintiff’s car struck “was displaced by a third party and it was
not a State (owned by ODOT) or Jurgensen truck.”          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 was the proximate cause of plaintiff’s injury. No evidence has been
presented to establish the damage claimed was proximately caused by any act or
omission on the part of either ODOT or Jurgensen.




                               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




KASI JORDAN

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 8

      Defendant

      Case No. 2010-01336-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:

Kasi Jordan                                     Jolene M. Molitoris, Director
1572 Winford Court                              Department of Transportation
Cincinnati, Ohio 45240                          1980 West Broad Street
                                                Columbus, Ohio 43223
RDK/laa
4/26
Filed 5/14/10
Sent to S.C. reporter 9/17/10
