[Cite as Gragg v. Ohio Dept. of Transp., 2011-Ohio-3773.]




                                      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




LESLIE GRAGG

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant


        Case No. 2010-11412-AD


Clerk Miles C. Durfey

MEMORANDUM DECISION


                                     MEMORANDUM DECISION
        {¶ 1} Plaintiff, Leslie Gragg, asserted that she suffered property damage to her
automobile on August 25, 2010, while traveling through a roadway construction zone on
State Route 20 in Painesville Township. Specifically, plaintiff maintained that her car
was damaged when she drove over a recently repaved roadway area and the paving
material ("asphalt coating or tar") adhered to the tires of her car. Plaintiff related that
the “road workers waved me through the one lane that was open. After driving through,
there was tar coating my tires. This caused my steering wheel to shake and hard to
control.”
        {¶ 2} Plaintiff contended that defendant, Department of Transportation ("DOT"),
should bear liability for her property damage caused by the roadway paving material.
Therefore, plaintiff filed this complaint seeking to recover $591.91, an amount
representing the replacement cost for four tires.        Plaintiff submitted photographs
depicting the damage to her tires. The photographs show a black, chunky tar-like
substance adhered to the tires. The damage-causing substance appears to be roadway
paving material. The filing fee was paid.
       {¶ 3} Defendant acknowledged that the area where plaintiff stated her damage
event occurred (State Route 20 approaching State Route 535) was located within a
roadway construction zone. Defendant explained that this section of State Route 20
was under the control of DOT contractor, Chagrin Valley Paving, Inc.            Defendant
maintained that neither DOT nor Chagrin Valley Paving were aware of any problems
with roadway pavement conditions on State Route 20 prior to plaintiff's stated incident.
In fact, defendant noted that Chagrin Valley Paving first learned of plaintiff’s alleged
incident on December 1, 2010, after plaintiff filed her complaint in this court. Despite
the fact that over 12,000 vehicles normally travel on the particular portion of State Route
20 in the course of a day, defendant denied receiving any complaints other than
plaintiff's complaint concerning roadway conditions on August 25, 2010, in the
construction project on State Route 20, near State Route 535.
       {¶ 4} Defendant has contended that DOT has no responsibility for damage
incidents occurring in a construction zone under the control of a contractor. Defendant
asserted that Chagrin Valley Paving, by contractual agreement, was responsible for
maintaining the roadway within the construction area. Therefore, DOT argued Chagrin
Valley Paving 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 roadway section. Nevertheless, the duty of DOT to maintain the roadway in a
safe drivable condition is not delegable to an independent contractor involved in
roadway construction. DOT may bear liability for the negligent acts of an independent
contractor charged with roadway construction.       See Cowell v. Ohio Department of
Transportation (2004), 2003-09343-AD, jud, 2004-Ohio-151. Furthermore, despite
defendant's contentions that DOT did not owe any duty in regard to the construction
project, defendant was charged with a duty 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 8, 2001), Franklin App. 00AP-1119.
       {¶ 5} In addition, defendant maintained that Chagrin Valley Paving placed
asphalt coating material only on the outermost lanes of State Route 20 and left the
innermost lanes available for travel. (Photographs submitted.) Thus, in order for plaintiff
to have tar on all four tires, she must have driven on an area not designated for travel,
and not at the direction of project personnel. Defendant contended that plaintiff failed to
prove her damage was caused by any act or omission on the part of DOT or its agents.
       {¶ 6} 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. Plaintiff, however, has not produced sufficient evidence to
show her damage was proximately caused by roadway repavement activities.
       {¶ 7} Defendant has the duty to maintain its highway in a reasonably safe
condition for the motoring public. Knickel v. Ohio Department of Transportation (1976),
49 Ohio App. 2d 335, 361 N.E.2d 486. However, defendant is not an insurer of the
safety of its highway. 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.
       {¶ 8} 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 unreasonable risk of harm
is the precise duty owed by DOT to the traveling public under both 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, Foglesong v. Dept. of Transp.,
Ct. of Cl. No. 2005-10284-AD, 2006-Ohio-7152. Plaintiff, in the instant claim, has failed
to prove that defendant or its agents breached any duty of care which resulted in
property damage. Consequently, this 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




LESLIE GRAGG

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-11412-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:

Leslie Gragg                                      Jerry Wray, Director
5805 Canyon Ridge Drive                           Department of Transportation
Painesville, Ohio 44077                           1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
3/24
Filed 4/13/11
Sent to S.C. reporter 7/29/11
