[Cite as Treadway v. Ohio Dept. of Transp., 2010-Ohio-3637.]



                                      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




ROGER M. TREADWAY

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6

       Defendant

        Case No. 2009-08811-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Roger M. Treadway, filed this action against defendant,
Department of Transportation (ODOT), alleging that he suffered paint damage to his
automobile as a proximate cause of negligence on the part of ODOT contractor Aero-
Mark, Inc. (Aero-Mark), in conducting a roadway painting operation on State Route 61.
Plaintiff recalled that the paint damage incident occurred on September 15, 2009 at
sometime during the morning hours.                In his complaint, plaintiff provided a narrative
description of his property damage event stating: “[f]ollowed directions of flagger as
yellow road paint was being applied. Yellow paint splashed all down side of new black
car, front to back.” Plaintiff explained that the yellow paint splattered on his vehicle
could not be removed and consequently, the car was taken to a body shop for repair.
Plaintiff requested damage recovery in the amount of $500.00, his insurance coverage
deductible for automotive repair. The $25.00 filing fee was paid and plaintiff requested
reimbursement of that cost along with his damage claim.
        {¶ 2} Defendant advised that after contacting plaintiff, it was suggested his paint
damage incident occurred on State Route 61 in either Delaware County or Morrow
County within the limits of a working construction project under the control of ODOT
contractor, The Shelly Company (Shelly).         Defendant maintained that no ODOT
personnel, no Shelly personnel and no sub-contractors of Shelly were applying yellow
paint to the roadway surface of State Route 61 on September 15, 2009. Defendant
explained Shelly was working on September 15, 2009 grading the roadway for new
asphalt and a flagger was employed during the operation to control traffic. However, no
paint crews were working on State Route 61 on September 15, 2009 or on subsequent
dates during September 2009 when work was performed. Evidence submitted shows
that Shelly did “put down temporary tape striping” (on State Route 61) on September
16, and 24, 2009. Defendant denied any liability in this matter.
       {¶ 3} From the allegations contained in plaintiff’s complaint, the court concludes
plaintiff has stated a claim against ODOT contractor, Aero-Mark.                This court has
previously held that ODOT cannot be held liable for any alleged negligence on the part
of a contractor in conducting painting operations on state roadways.                ODOT may
delegate its duty of care in situations where an independent contractor such as Aero-
Mark undertakes roadway painting projects. See Henderson v. Ohio Dept. of Transp.,
Ct. of Cl. No. 2003-11496-AD, 2004-Ohio-1839, adopting the rationale of Gore v. Ohio
Dept. of Transp., Franklin App. No. 02AP-996, 2003-Ohio-1648; also Henning v. Dept.
of Transp. (2006), 2006-04369-AD. ODOT is not the proper party defendant in this
action and therefore, this claim is dismissed.




                                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




ROGER M. TREADWAY
        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6

        Defendant

         Case No. 2009-08811-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:

Roger M. Treadway                                 Jolene M. Molitoris, Director
3500 St. Rt. 529                                  Department of Transportation
Cardington, Ohio 43315                            1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
3/11
Filed 3/25/10
Sent to S.C. reporter 8/6/10
