[Cite as Insana v. Ohio Dept. of Transp., 2011-Ohio-3859.]



                                      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

MONICA INSANA

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

       Defendant


        Case No. 2010-11943-AD


Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                     MEMORANDUM DECISION
        {¶ 1} Plaintiff, Monica Insana, states her husband was driving “west on Rt. 2
where there is heavy construction” on September 28, 2010, at approximately 6:15 p.m.
and that he felt he ran over something about one half mile before “the 91 exit.” Plaintiff
relates that within a few seconds “he had a complete flat tire.” Plaintiff later learned the
tire could not be repaired in that it had been punctured by the handle of a tool.
        {¶ 2} Plaintiff asserts that the damage to her vehicle was proximately caused by
negligence on the part of defendant, Department of Transportation (DOT), for leaving a
tool on the road in the construction area. Plaintiff seeks damages in the amount of
$152.04 for a replacement tire plus $ 25.00 for filing fee reimbursement. 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 DOT had no
responsibility for any damage or mishap on the roadway within the construction project
limits.    Therefore, DOT 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
DOT or its contractor.
          {¶ 5} Plaintiff did not file a response.
          {¶ 6} Defendant submitted an email response from Allega denying any
responsibility for the tool left in the roadway. According to the email, Allega was not
working at all on September 28, 2010, due to heavy rains and inclement weather.
Allega’s representative suggested that the tool “fell from a passing vehicle since no one
had encountered this hazard throughout the workday.”
          {¶ 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 tool on the roadway prior to her husband’s 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




MONICA INSANA

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

        Defendant

         Case No. 2010-11943-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:

Monica Insana                                     Jerry Wray, Director
5628 Walnut Street                                Department of Transportation
Mentor on the Lake, Ohio 44060                    1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
4/7
Filed 4/25/11
Sent to S.C. reporter 8/5/11
