[Cite as McAuliffe v. Ohio Dept. of Transp., 2010-Ohio-6663.]

                                      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




PATRICK R. MCAULIFFE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-06141-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Patrick R. McAuliffe, filed this action against defendant,
Department of Transportation (ODOT), contending his 2002 Mazda Protégé 5 was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition in a roadway construction area on Interstate 75 in Warren County.
In his complaint, plaintiff noted he was traveling on Interstate 75 near State Route 63
when “[d]ebris from the construction hit my car puncturing the gas tank and damaging
the exhaust.” Plaintiff recalled the stated property damage incident occurred on April 9,
2010 at approximately 4:00 p.m.                 Plaintiff requested damages in the amount of
$1,052.95, the total cost of replacement parts and repair expense. The filing fee was
paid.
        {¶ 2} Defendant acknowledged the roadway area where plaintiff’s incident
occurred was within the limits of a working construction project under the control of
ODOT contractor, John R. Jurgensen Company (Jurgensen). Defendant explained the
particular construction project “dealt with widening I-75 between Cincinnati-Dayton
Road and SR 122 in Butler and Warren Counties.”                  According to defendant, the
construction project limits “corresponds (to) state mileposts 21.0 to 32.0” on Interstate
75 and plaintiff’s damage incident occurred at milepost 29.2, a location within the
construction area limits. Defendant asserted that this particular construction project was
under the control of Jurgensen and consequently ODOT had no responsibility for any
damage or mishap on the roadway within the construction project limits. Defendant
argued that Jurgensen, by contractual agreement, was responsible for maintaining the
roadway within the construction zone. Therefore, ODOT contended that Jurgensen is
the proper party defendant in this action. Defendant implied that 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. Furthermore, defendant contended that plaintiff failed to introduce sufficient
evidence to prove his damage was proximately caused by roadway conditions created
by ODOT or its contractors. All construction work was to be performed in accordance
with ODOT requirements and specifications and subject to ODOT approval.              Also
evidence has been submitted to establish that ODOT personnel were present on site
conducting inspection activities.
       {¶ 3} 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
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 he 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. 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.
       {¶ 4} Defendant had 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
contentions 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 the particular construction work. See Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
       {¶ 5} Alternatively, defendant denied that neither ODOT nor Jurgensen “had
any notice of debris lying around in I-75 prior to plaintiff’s property incident.” Defendant
pointed out that ODOT records “indicate that no complaints were received at the Warren
County Garage for I-75 regarding debris prior to Plaintiff McAuliffe’s incident.”
Defendant advised, “[i]t should be noted that this portion of I-75 has an average daily
traffic volume between 73,320 and 93,130, however, no other complaints were received
(regarding any debris condition) prior to plaintiff’s alleged incident.”         Defendant
contended plaintiff failed to offer any evidence of negligent roadway maintenance on the
part of ODOT and failed to produce evidence to establish his property damage was
attributable to conduct on either the part of ODOT or Jurgensen.
       {¶ 6} Defendant submitted a letter from Jurgensen Project Manager, Kate
Holden, who recorded Jurgensen personnel “were working on the southbound outside
shoulder of I-75” on April 9, 2010, the stated date of plaintiff’s property damage
occurrence. Holden advised this Jurgensen crew was “working more than three miles
north of State Route 63.” According to Holden, no work was conducted on the Interstate
75 construction project on April 8, 2010 “due to heavy rains.” Holden provided copies of
her “journal notes” for the period from April 6, 2010 through April 13, 2010. There is no
mention of any debris condition in the submitted “journal notes.”
       {¶ 7} Generally, in order to prove a breach of the duty to maintain the highways,
plaintiff must prove, by a preponderance of the evidence, that defendant had actual or
constructive notice of the precise condition or defect alleged to have caused the
incident.   McClellan v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388.
Defendant is only liable for roadway conditions of which it has notice but fails to
reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR
64, 507 N.E. 2d 1179.       However, proof of notice of a dangerous condition is not
necessary when defendant’s own agents actively cause such condition. See Bello v.
City of Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the
syllabus; Sexton v. Ohio Department of Transportation (1996), 94-13861. Plaintiff, in
the instant claim has alleged that the damage to his vehicle was attributable to the
failure of Jurgensen to remove debris from the roadway caused by construction activity.
Plaintiff has not submitted any evidence to establish the roadway surface was milled
prior to April 9, 2010 or that any milling debris was left on the roadway.
       {¶ 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 the injury is the natural and probable consequence of a negligent act
and it is such as should have ben foreseen in the light of all the attending
circumstances, the inury is then the proximate result of the negligence.         It is not
necessary that the defendant should have anticipated the 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 his 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.
       {¶ 10} 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
ODOT 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 an
unreasonable risk of harm is the precise duty owed by ODOT to the traveling public
under both normal traffic 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; Rhodus, 67 Ohio
App. 3d 723, 588 N.E. 2d 864. In the instant claim, plaintiff has failed to introduce
sufficient evidence to prove that defendant or its agents maintained a known hazardous
roadway condition. See Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-
AD, 2008-Ohio-4190. Evidence has shown that the repavement project complied with
ODOT specifications. Plaintiff has not provided evidence to prove that the roadway
area was particularly defective or hazardous to motorists.     Reed v. Ohio Dept. of
Transp., Dist. 4, Ct. of Cl. No. 2004-08359-AD, 2005-Ohio-615. Plaintiff has failed to
provide sufficient evidence to prove that defendant was negligent in failing to redesign
or reconstruct the roadway repavement procedure considering plaintiff’s incident
appears to be the sole incident at this area. See Koon v. Hoskins (Nov. 2, 1993),
Franklin App. No. 93AP-642; also, Cherok v. Dept. of Transp., Dist. 4, Ct. of Cl. No.
2006-01050-AD, 2006-Ohio-7168.




                              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




PATRICK R. MCAULIFFE

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant
         Case No. 2010-06141-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:

Patrick R. McAuliffe                              Jolene M. Molitoris, Director
821 Wittlesbach Drive                             Department of Transportation
Apt. D                                            1980 West Broad Street
Kettering, Ohio 45429                             Columbus, Ohio 43223

RDK/laa
9/16
Filed 11/10/10
Sent to S.C. reporter 2/11/11
