[Cite as Spencer v. Ohio Dept. of Transp., Dist. 2, 2011-Ohio-2134.]

                                       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




LINDA G. SPENCER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 2

        Defendant

Case No. 2010-11609-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Linda G. Spencer, filed this action against defendant, Department
of Transportation (ODOT), contending her 2004 Chrysler 300 was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on the entrance ramp for State Route 53 from the US Route 20 by-pass in
Sandusky County. Plaintiff noted her car was damaged when the vehicle struck an
orange traffic control cone that had been positioned on the entrance ramp to State
Route 53. Plaintiff asserted the damage-causing traffic control cone was placed on the
roadway by ODOT contractor Aero-Mark, Inc.( Aero-Mark) who was involved with
pavement marking (painting) activities on the day of her incident, April 21, 2010.
Defendant acknowledged Aero-Mark was striping center and edge lines on US Route
20 in Sandusky County on April 21, 2010 with the work being completed by 4:15 p.m.
on that date. Defendant further acknowledged Aero-Mark utilized orange traffic control
cones during the painting operation to mark wet paint areas on the roadway. In her
complaint, plaintiff advised that an Aero-Mark representative disputed her contention
that the cone her vehicle struck was owned by Aero-Mark. Evidence has shown Aero-
Mark completed roadway painting operations by 4:15 p.m. on April 21, 2010 and
plaintiff’s damage incident occurred at approximately 9:45 p.m. on that same day.
Plaintiff suggested the cone her car hit was accidently left behind on the roadway ramp
when painting was completed. Plaintiff did not recover the traffic control cone. Plaintiff
did provide photographs depicting the damage to her automobile. In her complaint,
plaintiff requested damages in the amount of $500.00, her insurance coverage
deductible for automotive repair costs she incurred. The filing fee was paid.
       {¶ 2} Defendant explained the location plaintiff’s property damage event was
within the limits of a working roadway painting operation under the control of ODOT
contractor, Aero-Mark. Defendant argued Aero-Mark, by contractual agreement, was
“responsible for any occurrences or mishaps in the area in which they are working.”
Therefore, defendant contended Aero-Mark and not ODOT is the proper party
defendant in this action.
       {¶ 3} Alternatively, defendant related that neither ODOT nor Aero-Mark “had
notice of the construction barrel on US 20 prior to plaintiff’s incident.”        Defendant
contended plaintiff did not provide any evidence to establish the length of time the
damage-causing traffic control cone was displaced on the roadway prior to 9:45 p.m. on
April 21, 2010.
       {¶ 4} Defendant submitted a letter from Aero-Mark President, Mike Krenn, who
acknowledged Aero-Mark crews were using traffic control cones when conducting paint
striping operations on US Route 20 on April 21, 2010. Krenn noted the paint crews
“were using traffic cones to protect the wet paint until dry (usually 3-5 minutes), at which
time the cones were picked up to be used again.” Krenn pointed out painting was done
in accordance with ODOT specifications and all operations on US Route 20 on April 21,
2010 were completed by 4:15 p.m. Krenn expressed the opinion that the damage-
causing cone plaintiff’s Chrysler 300 struck was not owned by Aero-Mark.
       {¶ 5} Plaintiff filed a response insisting the traffic control cone that damaged her
Chrysler 300 was owned by Aero-Mark and left behind after painting had been
completed. Plaintiff did not submit any evidence to show defendant had either actual or
constructive notice of the particular traffic control cone left on the roadway.
       {¶ 6} From evidence available and plaintiff’s own assertions, it appears
plaintiff’s vehicle was damaged by a traffic control cone used in painting operations by
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, Inc. undertakes roadway painting
operations. 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; Treadway v. Ohio Dept. of Transp., Ct. of Cl. No. 2009-08811-AD, 2010-Ohio-3637;
Madison v. Ohio Dept. of Transp., Ct. of Cl. No. 2009-08616-AD, 2010-Ohio-3636.
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




LINDA G. SPENCER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 2

      Defendant

      Case No. 2010-11609-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, plaintiff’s case is DISMISSED.
Court costs are assessed against plaintiff.




                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Linda G. Spencer                                  Jerry Wray, Director
108 Mechanic Street                               Department of Transportation
Clyde, Ohio 43410                                 1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
2/2
Filed 2/8/11
Sent to S.C. reporter 4/29/11
