[Cite as Shifflett v. Ohio Dept. of Transp., 2011-Ohio-6901.]




                                        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
TRACY SHIFFLETT

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant



Case No. 2011-05637-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Tracy Shifflett, filed this action against defendant, Ohio
Department of Transportation (ODOT), contending that she was driving west on State
Route 2 when she struck a piece of cement with the passenger front tire. Plaintiff
recalled that the incident occurred on February 28, 2011, at approximately 7:00 p.m.
        {¶2}     Plaintiff asserts that the damage to her vehicle was proximately caused by
negligence on the part of ODOT and she seeks damages in the amount of $196.45 for a
replacement tire. The filing fee was paid.
        {¶3}     Defendant denied liability in this matter contending it did not have any
knowledge concerning debris on SR 2 prior to plaintiff’s property-damage incident.
Defendant determined the roadway area where plaintiff's incident occurred was within
the limits of a working construction project under the control of DOT contractor, Anthony
Allega Cement Contractor/Great Lakes Construction (Allega). Defendant explained the
construction project dealt “with grading, draining, paving * * * , noise barrier, reinforced
concrete retaining walls, * * * between mileposts 3.32 and 7.75 on SR 2 in Lake
County.” Defendant contended Allega, by contractual agreement, was responsible for
maintaining the roadway within the construction zone and consequently ODOT had no
responsibility for any damage or mishap on the roadway within the construction project
limits. Therefore, ODOT argues Allega 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.
         {¶4}   Furthermore, defendant contended plaintiff failed to introduce sufficient
evidence to prove her damage was proximately caused by negligence on the part of
ODOT or its contractor.
         {¶5}   Plaintiff did not file a response.
         {¶6}   Defendant submitted an email response from Allega denying any
responsibility for the damage. According to the email, Allega was not working at all on
westbound SR 2 on February 28, 2011, due to the inclement weather.                Allega’s
representative contended that it was never notified of the debris on the day plaintiff
encountered it or the next day. Allega denied having any notice of the hazard in the
roadway prior to plaintiff’s incident.
         {¶7}   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 defendant had notice of the debris on the roadway prior to her damage-causing
event.
         {¶8}   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.
         {¶9}   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 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
TRACY SHIFFLETT

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant



Case No. 2011-05637-AD

Acting 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
                                                  Acting Clerk

Entry cc:

Tracy Shifflett                                   Jerry Wray, Director
38542 Wood Road                                   Department of Transportation
Willoughby, Ohio 44094                            1980 West Broad Street
                                                  Columbus, Ohio 43223
7/26
Filed 8/11/11
Sent to S.C. reporter 1/3/12
