[Cite as Jacobs v. Ohio Dept. of Transp., Dist. 12, 2010-Ohio-4030.]

                                       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 JACOBS

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

        Defendant

        Case No. 2009-09400-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Linda Jacobs, filed this action against defendant, Department of
Transportation (ODOT), contending that her 1996 Mercury Marquis was damaged on
December 9, 2007, as a proximate cause of negligence on the part of ODOT in
maintaining proper traffic control in a roadway construction zone on US Route 422 in
Geauga County. Plaintiff recalled her property damage event occurred on “a dark,
rainy, and cold evening” while she was traveling east on US Route 422 through a
roadway construction area where orange barrels were positioned to maintain traffic
control. Plaintiff offered a description of roadway conditions at the time of her damage
incident providing the following narrative:                “Plaintiff attempted to enter the ODOT
construction zone at the intersection of S.R. 282 and S.R. 422 to gain access to 16983
Main Market Drive. There were many barrels missing that designated the turning point
from S.R. 422 into the construction zone, which made it difficult and unclear as to where
to turn (the median consisted of a huge 2 foot drop covered by water and ice). Plaintiff
continued east to use the next marked crossover (Reynolds Rd and S.R. 422) and upon
driving through the marked crossover, which appeared to be solid ground covered by
ice, Plaintiff’s automobile fell into a huge hole within the crossover area, which caused
substantial damage to the front of Plaintiff’s Mercury Marquis automobile.”
       {¶ 2} Plaintiff asserted the damage to her car was proximately caused by
negligence on the part of ODOT in failing to maintain and supervise the construction
project area on US Route 422.        Specifically, plaintiff contended the crossover area
where she damaged her was “poorly maintained and marked,” thereby rendering the
area hazardous for the motoring public. Plaintiff filed this complaint seeking to recover
damages in the amount of $1,104.88, the estimated cost for repairing her vehicle. The
filing fee was paid and plaintiff requested reimbursement of that cost and “court exhibit
documentation costs” in addition to her damage claim.
       {¶ 3} Defendant explained the area of U.S. Route 422 where plaintiff’s damage
incident occurred (between mileposts 19.37 and 19.59) was located within a working
construction project zone under the control of ODOT contractor, Karvo Paving Company
(Karvo). Defendant advised the particular project “started at milepost 18.31 and ended
at milepost 19.90.” Defendant related “[t]his section of roadway has an average daily
traffic count between 9,610 and 11,140 vehicles.” However, according to defendant,
neither ODOT nor Karvo received any complaints “with construction barrels being
misleading in the roadway with this amount of traffic on the roadway.” Consequently,
defendant contended plaintiff failed to offer sufficient evidence to prove the construction
area on US 422 was negligently maintained and that her property damage was
attributable to any conduct on the part of either ODOT or Karvo. Defendant specifically
denied that either ODOT or Karvo had any knowledge of misplaced barrels through the
construction project area that would mislead motorists such as plaintiff.         Defendant
denied the traffic control barrels were placed in such a way as to misdirect or
inadequately advise motorists of roadway conditions.
       {¶ 4} Defendant submitted a letter from Karvo representative, Melanie Phillips,
referencing the actions Karvo took to maintain traffic control on the US Route 422
construction project area. Phillips wrote, “it has been determined that Karvo Paving is in
compliance with all proper Traffic Control & Maintenance Guidelines and Safety
guidelines that have been set forth by (ODOT).”           Phillips submitted photographs
depicting the traffic control utilized at the project site and referring to these photographs
noted, “Karvo Paving clearly marked the construction zones with barrels, barricades,
various signs (ex. road closed, one-way, and do not enter).” Also, Phillips reported that
Karvo sent notices to local residents (on October 12, 2007, notice copy submitted)
advising them of “upcoming construction and traffic pattern changes” on US Route 422.
Phillips related “[a]ll areas of construction are inspected and passed before permitting
motorists access to designated construction areas.” Phillips pointed out the roadway
area was subject to ODOT onsite inspection approval and maintained in accordance
with ODOT specifications.        Furthermore, it appears from additional documentation
submitted by Karvo that plaintiff’s property damage occurred at a location where
signage was in place warning motorists that the road was closed in the specific area
plaintiff attempted to access.
       {¶ 5} The trier of fact reviewed the submitted photographs depicting the
construction area, signage in place, and positioning of traffic control barrels.     The
photographs depict a well maintained and well marked area with sufficient traffic control
in place.
       {¶ 6} 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,¶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.
       {¶ 7} 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.
      {¶ 8} Defendant may bear liability if it can be established if some act or
omission on the part of ODOT or its agents was the proximate cause of plaintiff’s injury.
This court, as the 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.
      {¶ 9} “If any 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. Evidence available tends to point out the roadway was maintained properly
under ODOT specifications.      Plaintiff failed to prove her damage was proximately
caused by any negligent act or omission on the part of ODOT or its agents. See Wachs
v. Dept. of Transp., Dist. 12, Ct. of Cl. No. 2005-09481-AD, 2006-Ohio-7162; Vanderson
v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-09961-AD, 2006-Ohio-7163.; Shiffler v.
Ohio Dept. of Transp., Ct. of Cl. No. 2007-07183-AD, 2008-Ohio-1600. In fact, the sole
cause of plaintiff’s damage was her own negligent driving. See Wieleba-Lehotzky v.
Ohio Dept. of Transp., Dist. 7, Ct. of Cl. No. 2004-03918-AD, 2004-Ohio-4129. Plaintiff
has not proven defendant maintained a hidden roadway defect. See Sweney v. Ohio
Dept. of Transp., Dist. 8, Ct. of Cl. No. 2009-03649-AD, 2009-Ohio-6294.              The
photographic evidence submitted establishes the roadway area was well marked,
properly maintained with adequate traffic control in place.      Consequently, plaintiff’s
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




LINDA JACOBS

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

      Defendant

      Case No. 2009-09400-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:
Timothy J. Grendell             Jolene M. Molitoris, Director
7413 Tattersall Drive           Department of Transportation
Chesterland, Ohio 44026         1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
3/31
Filed 4/28/10
Sent to S.C. reporter 8/26/10
