[Cite as Kingsley v. Ohio Dept. of Transp., 2010-Ohio-1957.]

                                       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




SHARON KINGSLEY

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-08373-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Sharon Kingsley, filed this action against defendant, Department
of Transportation (ODOT), contending that her 1995 Dodge Intrepid was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a construction sign
on Interstate 77 in Cuyahoga County. Plaintiff pointed that out she was traveling on
Intestate 77 on September 28, 2009 at approximately 10:50 a.m., when “[a]n orange
construction sign blew across 77 N. bound lane near the Brecksville exit and hit the
front of my car damaging the bumper, grill, hood and radiator (and) lights.” Plaintiff
requested damages in the amount of $2,280.76, representing automotive repair
expenses and related costs. Plaintiff submitted the $25.00 filing fee and she seeks
reimbursement of that cost along with her damage claim. Photographs depicting the
body damage to the 1995 Dodge Intrepid were submitted.
        {¶ 2} Additionally, plaintiff submitted a handwritten statement from Charles
Rutherford, a passenger in plaintiff’s car and an eyewitness to the September 28, 2009
property damage occurrence. Rutherford recalled seeing plaintiff’s car struck by “a
large orange sign” while traveling on Interstate 77 “almost directly at Route 82 which is
Broadview Heights exit.” Rutherford pointed out that the damage-causing sign “blew
across the highway from the center strip (roadway median).” Rutherford noted that the
area where the incident occurred was under construction and orange traffic control
barrels were aligned along the roadway.        Rutherford related that the “sign was an
orange diamond shape (and) [t]here were strong winds” on the day of the damage
incident. Rutherford further related that “[t]he car in front of us was a Broadview Hts
police car who made a notation in their computer for that day but didn’t want to make a
report.”   In her complaint, plaintiff recorded that a “[p]olice report (was) filed by
Broadview Hts. Sgt. after I exited (the) highway at the next exit” on Interstate 77. Also,
in her complaint, plaintiff recorded that a police report of the September 28, 2008
damage incident is available at the Broadview Heights Police Department. A police
report was not submitted with plaintiff’s complaint.
       {¶ 3} Defendant acknowledged that the area where plaintiff’s described damage
event occurred was located within a construction zone maintained by ODOT contractor,
Kokosing Construction Company, Inc. (Kokosing).            Defendant related that the
construction project “dealt with grading, draining and paving with asphalt concrete to
thirteen (13) structures on I-77" in Cuyahoga County between mileposts 148.98 to
155.55. From plaintiff’s description, defendant located plaintiff’s incident at milepost
149.70. Defendant asserted that Kokosing, by contractual agreement, was responsible
for maintaining the roadway within the construction area. Therefore, ODOT argued that
Kokosing is the proper party defendant in this action, despite the fact that all
construction work was to be performed in accordance with ODOT requirements,
specifications, and approval.     Defendant also pointed out that an ODOT Project
Engineer maintained an onsite presence. 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.
       {¶ 4} 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. 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.
      {¶ 5} 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 road 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 particular construction work.     See Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
      {¶ 6} 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. Alternatively, defendant denied that neither ODOT nor Kokosing
had notice of a problem with a sign at milepost 149.70. Defendant related that ODOT
“records indicate that complaints (copies submitted) were received for I-77 in the
construction field and for damage from signs but they were not in the same location as
Plaintiff Kingsley’s incident.”   The ODOT records show complaints about signs on
Interstate 77 were filed by motorists on August 10, 2009, August 19, 2009 and July 2,
2009. These complaints about signs were not at the same approximate location as
plaintiff’s damage event.
       {¶ 7} Defendant submitted a copy of the Broadview Heights Police Department
“Service Report” compiled when plaintiff reported that her vehicle had been damaged by
a wind blown road sign while she was traveling on Interstate 77 “at 82.” The “Service
Report” was entered at 10:56:57 a.m. on Monday, September 28, 2009. It was noted in
the report that the damage observed on plaintiff’s car “is consistent with being hit by a
sign but there is no sign on the interstate that had been knocked down.”
       {¶ 8} Defendant also submitted a copy of an e-mail from ODOT employee,
Peter McHugh regarding his research of the project records for September 28, 2009 in
the vicinity of plaintiff’s damage occurrence. McHugh reported: “On September 28,
2009, a right lane closure was in place on I-77 northbound from Oakes Road to Valley
Parkway. The lane closure was set up at 10:00 a.m. Advanced warning signs were in
place for this lane closure.      Advanced warning signs consist of 3 sets of orange,
diamond shaped signs. The weather records show that the winds were high this day,
with average wind speeds of 19 mph and gusts up to 47. Our records do not show that
a sign was missing.” Additionally, defendant submitted an e-mail from Kokosing Claims
Specialist, Pamela LeBlanc, concerning her own investigation in reference to signage
utilized by Kokosing on September 28, 2009. LeBlanc reported inquiries were made of
the Kokosing daytime Traffic Supervisor and the Foreman of the crew responsible for
the particular area of Interstate 77 on September 28, 2009. LeBlanc wrote “[t]hey were
both unaware of any damaged signs, or any incidents around the date in question.”
       {¶ 9} Defendant asserted that plaintiff has failed to offer sufficient evidence to
prove that her property damage was attributable to any conduct on either the part of
ODOT or Kokosing. Defendant further asserted that plaintiff failed to prove her property
damage was caused by negligent maintenance. Furthermore, defendant contended
that “the evidence indicates that neither ODOT nor Kokosing Construction Company
were aware of signs blowing around on I-77 which [p]laintiff struck.”
       {¶ 10} 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
to 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; Rhodus,
67 Ohio App. 3d 723, 588 N.E. 2d 864.
       {¶ 11} Ordinarily in a claim involving roadway defects, plaintiff must prove that
either: 1) defendant had actual or construction notice of the defective condition 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.         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.
Although defendant’s contractor created certain conditions by installing lane closure and
advance warning signs on Interstate 77 on September 28, 2009, plaintiff has the burden
to prove defendant’s agents created a dangerous condition when the signs were
installed.
       {¶ 12} Plaintiff filed a response asserting Kokosing did not properly “secure the
signs” on September 28, 2009. Plaintiff argued the doctrine of res ipsa loquitur should
apply under the facts of this claim and consequently, she should prevail.             Plaintiff
contended that the damage to her car would not have occurred under such
circumstances had ordinary care been observed in regard to sign installation.
       {¶ 13} Res ipsa loquitur has been defined as a “rule of evidence which permits
the trier of fact to infer negligence on the part of defendant from the circumstances
surrounding the injury to plaintiff.” Hake v. Wiedemann Brewing Co. (1970), 23 Ohio St.
2d 65, 66, 52 O.O. 2d 366, 363 N.E. 2d 703. The doctrine is applicable where the
instrumentality that caused the injury was, either at the time of the injury or at the time of
the creation of the condition causing the injury, (1) under the exclusive management
and control of defendant, and (2) the injury would not have occurred if ordinary care had
been observed, Hake, at 66-67.
       {¶ 14} The doctrine has limited application, however, as stated in Jennings Buick,
Inc. v. Cincinnati (1980), 63 Ohio St. 2d 167, at 172, 17 O.O. 3d 102, 406 N.E. 2d 1385:
       {¶ 15} “The maxim res ipsa loquitur relates merely to negligence prima facie and
is available without excluding all other possibilities, but it does not apply where there is
direct evidence as to the cause, or where the facts are such that an inference that the
accident was due to a cause other than defendant’s negligence could be drawn as
reasonably as that it was due to his negligence. * * *”
       {¶ 16} “Where it has been shown by the evidence adduced that there were two
equally efficient and probable causes of the injury, one of which is not attributable to the
negligence of defendant, the rule of res ipsa loquitur does not apply.” Jennings, at 171.
Where the trier of fact cannot reasonably find one of the probable causes more likely
than the other the doctrine of res ipsa loquitur is inapplicable. Jennings.
       {¶ 17} Assuming plaintiff’s car was damaged by a sign maintained by Kokosing
and subject to ODOT inspection (these facts remain in dispute) the doctrine of res ipsa
loquitur does not apply to the facts of the instant claim. Evidence has shown that high
velocity wind gusts upwards of 47 mph were measured in the area of plaintiff’s
September 28, 2009 incident. Plaintiff related that her car was struck by a sign that
“blew across the highway.” Plaintiff did not provide any evidence to suggest the sign
was in disrepair or improperly installed. It is well settled Ohio law that if an “Act of God”
is so unusual and overwhelming as to do damage by its own power, without reference
to and independently of any negligence by defendant, there is no liability. Piqua v.
Morris (1918), 98 Ohio St. 42, 49, 120 N.E. 300. The term “Act of God” in its legal
significance, means any irresistible disaster, the result of natural causes, such as
earthquakes, violet storms, lightening and unprecedented floods. Piqua, at 47-48. In
refusing to apply the doctrine of res ipsa loquitur to the facts of the instant claim, the
court finds plaintiff’s damage could have been proximately caused by a force of nature,
high velocity wind gusts, as opposed to any negligent act or omission on the part of
defendant or its agents.
       {¶ 18} “If any 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 proof that her property damage was connected to
any conduct under the control of defendant, that defendant was negligent in maintaining
the construction area, 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




SHARON KINGSLEY

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2009-08373-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:

Sharon Kingsley                                 Jolene M. Molitoris, Director
12113 Erwin                                     Department of Transportation
Cleveland, Ohio 44138                           1980 West Broad Street
                                                Columbus, Ohio 43223
RDK/laa
12/22
Filed 1/8/10
Sent to S.C. reporter 4/30/10
