[Cite as Conrad v. Ohio Dept. of Transp., 2012-Ohio-2084.]




                                                        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




JASON CONRAD

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2011-06340-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, Jason Conrad, filed this action against defendant, Ohio
Department of Transportation (ODOT), contending his 2000 model 379 Peterbilt truck
with attached trailer suffered significant damage as a proximate result of negligence on
the part of ODOT in maintaining a hazardous condition on US 22. Plaintiff recalled his
described damage incident occurred on April 12, 2011, after leaving his home “around
noon.” Specifically, plaintiff related he was “traveling west on Ste Rt 22 just passed
Ringgold Southern Rd” when he “hit a dip in the road.” Plaintiff explained that “[t]he dip
was not visible while driving at the posted speed and there were no signs warning me of
any changes to road condition. After hitting the dip I noticed my truck seemed to pull
toward the right.” Plaintiff further explained, “I continued to Columbus to drop off my
load. When I unhooked from the trailer, I noticed that the truck was still not handling
correctly, so I started looking for damage, that’s when I saw that the right rear spring
was broke.         I had to call work and explain that I couldn’t work till I got the spring
replaced.” Plaintiff initially requested reimbursement of $2,161.00; however, plaintiff
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discovered additional damage and on May 13, 2011, he notified the court that his loss
totaled $4,398.30, the estimated cost of wages lost, vehicle repair, and related
expenses. The filing fee was paid.
      {¶2}   On September 26, 2011, a judge of the Court of Claims granted plaintiff’s
motion to reduce the prayer amount to $2,500.00, the statutory maximum damage
amount allowed under R.C. 2743.10, and transferred the case to the administrative
docket. See R.C. 2743.10.
      {¶3}   Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the particular damage-causing condition prior to
April 12, 2011. Defendant located the roadway defect “at approximately milepost 21.97
on US 22 in Pickaway County” and advised that “ODOT did not receive any reports of
the dip in the road or have knowledge of the dip in the road prior to the incident.” Thus
defendant denied having “actual notice of the defect.”
      {¶4}   Defendant submitted an e-mail from the Pickaway County Manager, Jeff
Rush, who stated that at, “approximately 12 Noon on 4/12/11 we were notified of an
issue with a ‘dip’ in the pavement. We were in the midst of a spring with excessively
high rainfall. Upon inspection, I contacted Dan Wise, the District 6 Roadway Services
Case No. 2006-03532-AD                   -3-                MEMORANDUM DECISION



Manager.” Rush explained that he “contacted our Traffic Department to have crews set
up a detour, and contacted Pickaway County forces to get signs, barricades and barrels
mobilized to close the road. We had the roadway closed with proper detour and all
personnel had returned to our facility to clock out by 3:30 PM.”
      {¶5}    Defendant denied ODOT negligently maintained US 22 in Pickaway
County. Defendant noted that when “Pickaway County Manager Jeff Rush was notified
of the dip on US 22, he immediately had a detour set up to prevent any mishaps on this
roadway past Ringgold-Southern Road.” Defendant contended that ODOT and plaintiff
learned of the dip in the road at the same time and that “ODOT was not negligent in
remedying the situation.”
      {¶6}    Plaintiff filed a response disputing the statements and conclusions
presented in defendant’s investigation report.     Specifically, plaintiff related that the
detour was not in place until much later in the day. Plaintiff explained that after he had
driven to Columbus and delivered his load, he assessed the damage to his truck.
Plaintiff returned home over the same roads in an attempt to discover what had caused
the damage.    Plaintiff recalled that “[t]he only thing I saw was some state workers
standing in the roadway looking around, no signs or anyone directing traffic away from
the dip.” Plaintiff pointed out that the roadway defect was located in a “lower area
between two hills,” and that excessive rain water rushes through the area causing the
gravel to wash away thereby weakening the pavement. Plaintiff submitted photographs
of the area taken on November 21, 2011, which depict several depressions and shallow
trenches in the gravel located on the shoulder of the roadway adjacent to the paved
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berm.
        {¶7}   Defendant filed a reply to plaintiff’s response and included a statement
from Ron Duncan, an ODOT employee who identified himself as an Acting
Transportation Manager. Duncan related that two ODOT workers, Randy Vorhees and
Dennis Pasco, were first aware of the dip in the road on SR 22 at 8:30 a.m. on April 12,
2011. According to Duncan, Vorhees and Pasco called him to the site where they
discovered the culvert beneath the roadway was underwater, blocked by some trees
that had washed down a hillside. Duncan stated that initially they intended to remove
the trees but at some later time the decision was made to close the road. Duncan
asserted that barricades used to close the road and signs related to the detour were in
place by 3:30 p.m. In its reply, defendant suggested that the road was not closed
sooner because the traffic was progressing through the area without losing control “by
going out of their lane of travel.” Defendant also contended that plaintiff compounded
the damage to the truck by driving it back home after learning of the broken spring.
        {¶8}   For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his injuries.       Armstrong v. Best Buy
Case No. 2006-03532-AD                          -5-        MEMORANDUM DECISION



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. Defendant
must exercise due diligence in the maintenance and repair of highways. Hennessy v.
State of Ohio Highway Department (1985), 85-02071-AD.
       {¶9}    Furthermore, defendant has a duty to post warning signs notifying
motorists of highway defects or dangerous conditions. Gael v. State (1979), 77-0805-
AD. There is no evidence ODOT personnel placed any warning or advisory signs at or
near milepost 21.97 on US 22 to either warn or advise motorists of roadway conditions
created by the blocked culvert during the nearly four hours ODOT workers were aware
of the problem prior to plaintiff’s incident.
       {¶10} As a necessary element of this type of claim, plaintiff was required to
prove proximate cause of his damage by a preponderance of the evidence. See, e.g.
Stinson v. England, 69 Ohio St. 3d 451, 1994-Ohio-35. This court, as 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.
       {¶11} “If an 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
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N.E. 327.
      {¶12} The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to
believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548.
      {¶13} The trier of fact finds plaintiff’s contentions to be credible and supported by
the additional information supplied with defendant’s reply. Evidence has established
defendant had actual notice of the roadway defect nearly four hours prior to plaintiff’s
property-damage event. Upon review of all the evidence presented, the court finds that
defendant did not act reasonably in failing to timely warn motorists of the roadway
defect after confirming the existence and location of the hazard at 8:30 a.m. on April 12,
2011. In the present action, the court concludes sufficient evidence has been offered to
establish defendant breached its duty of care owed to the traveling public by failing to
provide adequate warning of the dip in the road. See Brown v. Ohio Dept. of Transp.-
Dist.8, Ct. of Cl. No. 2008-09350-AD, 2009-Ohio-7105.
      {¶14} Damage assessment is a matter within the function of the trier of fact.
Case No. 2006-03532-AD                  -7-                MEMORANDUM DECISION



Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462.
Reasonable certainty as to the amount of damages is required, which is that degree of
certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement
Sys. Of Ohio (1995), 102 Ohio App. 3d 782, 658 N.E. 2d 31. In the instant claim,
plaintiff has failed to submit any evidence to substantiate his claim of lost wages,
$500.00 per day.     Plaintiff did present receipts for parts totaling $1,273.30 and
inasmuch as plaintiff was able to perform the repairs, the court finds $300.00 to be a
reasonable sum for both repairs. Defendant is liable to plaintiff for the damage proven,
$1,573.30, plus the $25.00 filing fee which may be awarded as compensable costs
pursuant to R.C. 2335.19.     See Bailey v. Ohio Department of Rehabilitation and
Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.
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Case No. 2006-03532-AD            -8-          MEMORANDUM DECISION




                                        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




JASON A. CONRAD

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2011-06340-AD

Deputy Clerk Daniel R. Borchert
Case No. 2006-03532-AD                     -9-               MEMORANDUM DECISION




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 plaintiff in the amount of $1,598.30, which includes the filing fee. Court costs are
assessed against defendant.




                                           Deputy Clerk

Entry cc:

Jason A. Conrad                            Jerry Wray, Director
11825 Cincinnati-Zanesville Road           Department of Transportation
Stoutsville, Ohio 43154                    1980 West Broad Street
                                           Columbus, Ohio 43223
SJM/laa
1/9
Filed 1/30/12
Sent to S.C. reporter 5/10/12
