[Cite as Costello v. Ohio Dept. of Transp., 2009-Ohio-7157.]

                                       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




GERALDINE COSTELLO

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2009-06052-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Geraldine Costello, resides in a home adjacent to US Route 20 in
Perry, Ohio, Lake County. The edge of the driveway to her residence abuts US Route
20.    On or about May 3, 2009, US Route 20 near plaintiff’s residence was under
construction; specifically, the roadway pavement had been recently milled in preparation
for repaving. Plaintiff stated, “[o]n May 3, 2009 while leaving my drive, I pulled out and
the bottom of my car struck the ridge of drive damaging the underside of my” 2000
Volkswagen Passat. Two flex pipes and two converters on the vehicle were damaged
when plaintiff traveled from her drive onto the uneven pavement condition on US Route
20 created by the recent milling activity. Plaintiff implied the damage to her car was
proximately caused by negligence on the part of defendant, Department of
Transportation (ODOT), in maintaining a hazardous condition in a construction project
area on US Route 20 in Lake County. Plaintiff filed this complaint seeking to recover
$743.75, the cost of automotive repair costs she incurred resulting from the described
incident. 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, Burton Scot Contractors, LLC (Burton Scot). Defendant explained
the particular project “dealt with grading, draining and paving with asphalt concrete on
US 20 in Lake County.” Defendant asserted Burton Scot, by contractual agreement
was responsible for any roadway damage, occurrences, or mishaps within the
construction zone.    Therefore, ODOT argued that Burton Scot 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. All work
by the contractor was to be performed in accordance with ODOT mandated
specifications and requirements and subject to ODOT approval.                Furthermore,
defendant maintained an onsite personnel presence in the construction project area.
      {¶ 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, 788 N.E. 2d 1088, ¶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 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 that neither ODOT nor Burton Scot had
any knowledge of “the driveway on US 20 prior to plaintiff’s incident.”         Defendant
pointed out plaintiff’s residence is located at approximately milepost 22.02 which is
within the construction project limits.    Defendant related ODOT “records (copies
submitted) indicate that no calls or complaints were received at the Lake County
Garage regarding the driveway in question prior to her (plaintiff’s incident).” Defendant
contended plaintiff failed to produce evidence establishing her property damage was
attributable to conduct on either the part of ODOT or Burton Scot.
      {¶ 6} Defendant submitted a letter from Burton Scot Safety Manager, Bea
Rausch, regarding work performed on the construction project. Rausch provided the
following narrative explanation of work conditions:
      {¶ 7} “The area where Ms. Costello claims the alleged damage to her vehicle
occurred, was in a posted construction zone. In addition to the zone being posted and
set in accordance with the Ohio Department of Transportation regulations, BSC
provided and displayed extra signage. Consistently, every effort was made to insure
the safety of both vehicle and pedestrian traffic. Furthermore, all phases of the project
(which include, but were not limited to the milling paving and the castings), were
performed according to the Ohio Department of Transportation specifications.”
      {¶ 8} Defendant asserted plaintiff should have been aware of the fact that
pavement resurfacing work on US Route 20 would have an affect on her driveway.
Defendant advised work began on the project on March 24, 2009, more than seven
weeks before plaintiff’s damage occurrence.           Construction project limits ran from
milepost 20.73 past milepost 24.80 on US Route 20. Defendant again denied having
any knowledge regarding how the roadway milling would affect safe access to and from
plaintiff’s driveway.
       {¶ 9} 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
construction activity of ODOT’s contractor prior to May 3, 2009. Additionally, plaintiff
submitted photographic evidence depicting the uneven pavement condition and surface
deviation between the edge of her driveway and the milled portion of US Route 20. No
evidence was submitted to establish when the roadway surface near milepost 22.02 on
US Route 20 was initially milled prior to May 3, 2009.
       {¶ 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} 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 provided sufficient evidence to prove a known hazardous condition existed on the
roadway after ODOT specified operations were completed and neither ODOT nor its
agents timely corrected the condition. Plaintiff has proven her damage was proximately
caused by negligent acts and omissions on the part of ODOT onsite personnel and
ODOT’s agents. Therefore, defendant is liable to plaintiff in the amount of $743.75, the
total cost of automotive repair, plus the $25.00 filing fee, which may be awarded as
costs pursuant to R.C. 2335.19. See Bailey v. Ohio Department of Rehabilitation and
Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.




                              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




GERALDINE COSTELLO

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2009-06052-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 plaintiff in the amount of $768.75, which includes the filing fee. Court costs are
assessed against defendant.




                                           DANIEL R. BORCHERT
                                           Deputy Clerk

Entry cc:

Geraldine Costello                         Jolene M. Molitoris, Director
3585 N. Ridge Road                         Department of Transportation
Perry, Ohio 44081                          1980 West Broad Street
                                           Columbus, Ohio 43223
RDK/laa
10/6
Filed 11/18/09
Sent to S.C. reporter 3/5/10
