[Cite as Goldstein v. Ohio Dept. of Transp., Dist. 4, 2010-Ohio-3935.]

                                        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




JONATHAN D. GOLDSTEIN

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 4

        Defendant

        Case No. 2009-09701-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Jonathan D. Goldstein, filed this action against defendant,
Department of Transportation (ODOT), alleging his 2004 Honda Pilot was damaged as
a proximate cause of negligence on the part of ODOT in “overseeing” a construction
operation on a bridge spanning Interstate 680 in Youngstown. On August 13, 2009, at
approximately 12:05 p.m., plaintiff traveled under the Ridge Avenue bridge that spans
Interstate 680 while APBN, Inc., a subcontractor of ODOT contractor Shelly & Sands,
Inc., was conducting paint removal operations on the bridge by sandblasting. Plaintiff
advised that he was traveling north in the right lane of Interstate 680 and the left lane
was closed for the construction operation on the bridge. Plaintiff related “[a]s I passed
through the worksite my car was damaged by falling debris that was caused by a worker
that was sandblasting paint from the bridge.”                      Plaintiff explained the APBN, Inc.
employee was conducting the sandblasting operation from a standing position on top of
an elevated box-truck that was parked on Interstate 680 beneath the bridge. Plaintiff
further explained this sandblasting of the bridge was being conducted “without any
enclosure” covering any portion of the bridge area.                      Plaintiff stated “[a]s I passed
through the (APBN, Inc.) worker directed his nozzle toward the far right side of the
passing lane causing debris to fall and damage my vehicle.” Plaintiff recalled he then
exited the roadway at the nearest exit, reentered Interstate 680, drove south back to the
sandblasting job site where he parked his vehicle, and began taking photographs
(copies submitted) of the work set up.       After photographing the operation, plaintiff
proceeded to the Youngstown Police Department and filed an incident report. Plaintiff
claimed the falling debris from the bridge sandblasting caused multiple areas of damage
to the body of his 2004 Honda Pilot including “chips, scratches and dings in my hood,
(left) fender, windshield and roof.” Plaintiff filed this complaint requesting total damages
of $1,346.75 representing the cost of repairing his vehicle, car rental expense, and work
loss, all resulting from the August 13, 2009 described incident. The filing fee was paid.
In his complaint, plaintiff submitted a copy of the title (issue date July 31, 2009) to his
2004 Honda.
       {¶ 2} The photographs plaintiff submitted depicting the sandblasting in progress
show that the operation was being conducted in the open with no covering around the
elevated box truck or bridge area where paint was being removed from the bridge
structure. One photograph shows a cloud of dust like particles floating about the bridge
structure and descending upon the open traveled portion of Interstate 680. Plaintiff also
submitted photographs depicting damage to his vehicle.             From a review these
photographs, it appears the damage depicted is consistent with the assertion that the
vehicle was pelted with fine particulate, although the damage shown appears to be
extremely minor. However, one photograph shows damage in the form of a circular
indentation which appears consistent with the vehicle body being hit with a chunk of
concrete or rock and not being pelted with fine particulate matter.
       {¶ 3} Defendant acknowledged that the area where plaintiff’s alleged damage
incident occurred was located within the limits of a working construction project under
the control of ODOT contractor, Shelly & Sands, Inc.            Defendant explained this
particular project, “dealt with improving structures on I-680 within the City of
Youngstown and these would relate to mileposts 4.03 to 12.18 in Mahoning County.”
Defendant located plaintiff’s described incident according to the Youngstown Police
Department Report he filed at the Woodland Overpass, which corresponds to “milepost
5.94 which would be within the construction limits of this project.” Defendant asserted
Shelly & Sands, Inc., by contractual agreement, was responsible for any damage
occurrences or mishaps within the limits of the construction zone. Therefore, ODOT
argued Shelly & Sands, Inc. should be 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. All work by the contractor was to be
performed in accordance with ODOT mandated specifications and requirements and
subject to ODOT approval.        Furthermore, ODOT maintained an onsite inspection
presence within the limits of the project area.
       {¶ 4} 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.
       {¶ 5} 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.
      {¶ 6} Alternatively, defendant argued neither ODOT nor Shelly & Sands, Inc.
had any knowledge “of the sandblasting operation on I-680 prior to plaintiff’s incident.”
ODOT records indicate no calls or complaints were received regarding the sandblasting
incident prior to plaintiff’s incident. Defendant related ODOT records show “this portion
of I-680 has an average daily traffic volume between 4,890 and 53,450, however, no
other complaints were received prior to plaintiff’s alleged incident.”        Defendant
contended plaintiff failed to produce evidence establishing that his property damage
was attributable to any conduct on either the part of ODOT or Shelly & Sands, Inc.
Defendant asserted plaintiff did not offer any evidence to prove ODOT negligently
maintained the roadway bridge. Defendant argued that any damage to plaintiff’s vehicle
could not have been caused by APBN, Inc. conducting sandblasting operations.
      {¶ 7} Defendant submitted a letter from APBN, Inc. Vice Present, Vasilis
Katsourakis, regarding the damage observed on plaintiff’s vehicle. Vasilis Katsourakis
reported APBN, Inc. representatives met with plaintiff on September 14, 2009 and
examined the damage on his car. Vasilis Katsourakis expressed the opinion that the
damage observed on the car was very minor and was not caused by APBN, Inc.
conducting sandblasting. Vasilis Katsourakis noted the following:
      {¶ 8} “The majority of the damage reported by Mr. Goldstein and observed by
APBN Inc.’s representative, Anthony Katsourakis, were three distinct pot marks located
in the middle of Mr. Goldstein’s vehicle. To suggest that 20-40 black beauty sand (sand
finer than sugar) created the pot marks on Goldstein’s auto would be absurd. The pot
marks on Goldstein’s vehicle were caused by something denser than the 20-40 black
beauty sand APBN INC. was using on this project.”
      {¶ 9} Additionally, Vasilis Katsourakis reported that plaintiff “pointed out four
areas of windshield damage of which three were bug marks that were removed by Mr.
Katsourakis.”
      {¶ 10} Defendant also supplied a statement from ODOT Project Engineer, Tom
Kopnicky, regarding his opinion of the alleged damage incident. Kopnicky recorded the
following observations:
        {¶ 11} “After looking at the pictures, I don’t think that the damage was caused by
APBN. The dents in the hood, in no way could have been caused by our operation. It
is not physically possible. We are talking about paint being removed from the concrete.
The waste created by this operation is a very fine, light debris that is swept up with
brooms.”
        {¶ 12} Plaintiff filed a response insisting his 2004 Honda Pilot was damaged as a
result of APBN, Inc. conducting sandblasting operations on the bridge spanning
Interstate 680. Plaintiff advised APBN, Inc. failed to follow ODOT specifications when
engaging in sandblasting. Plaintiff contended his vehicle was damaged as a proximate
cause of the failure of APBN, Inc. to follow set ODOT specifications when performing
the sandblasting. Specifically, plaintiff asserted “APBN’s negligence caused debris to
fall and damage my vehicle, as there was no enclosure to catch falling sandblast
cuttings and debris.” Plaintiff’s photographic evidence clearly shows no enclosure was
in position around the APBN, Inc. box truck and bridge during the sandblasting
operation.        Plaintiff submitted a copy of ODOT specification 514.13(D)1 titled
“Containment/Waste Disposal,” which requires ODOT contractors to erect enclosures
around bridges when performing sandblasting operations.

        1
            ODOT “Construction and Material Specifications” manual section 514.13(D) provides in relevant
part:
         “D. Containment/Waste Disposal (QCP #4). Waste material generated by abrasive blasting
operations in the field is a solid waste and may be a hazardous waste. Contain, collect, store, evaluate,
and properly dispose of the waste material. Comply with all Federal, State, and local environmental
protection laws, regulations, and ordinances including, but not limited to, air quality, waste containment,
and waste removal. The Contractor is advised that various governmental bodies are involved with solid
waste and hazardous waste disposal and the Contractor is responsible for complying with laws enforced
by the various governmental bodies.
         “To prevent contamination of the pavement or soil, park all equipment on ground covers free of
cuts, tears, and holes.
         “Clean equipment of spent abrasives or debris before bringing equipment to the project, moving
equipment from one bridge site to another, and removing equipment from the project. Store debris
cleaned from equipment with the debris from the structure that generated the debris.
         “Erect an enclosure to completely surround (around, under and over the top on truss type
bridges) the blasting operations. The Contractor may use the ground as the bottom of the enclosure if the
ground is completely covered with plastic or tarps.
         “Construct the enclosure of flexible materials such as tarpaulins (specifically designed for blasting
containments), or construct the enclosure of rigid materials such as plywood. Maintain all materials free
of tears, cuts, and holes. Overlap all seams a minimum of 6 inches (150 mm) and fasten the seams
together at 12-inch (300 mm) centers or in a manner that ensures a seal that does not allow openings
between the edges of the containment material. Extend the vertical sides of the enclosure completely up
to the bottom of the deck on a steel beam bridge and use bulkheads between beams to enclose the
blasting area.”
      {¶ 13} Plaintiff also disputed the description of the inspection of his vehicle by
Anthony Katsourakis that was provided by Vasilis Katsourakis.          Plaintiff explained
Anthony Katsourakis looked at his blue Honda Pilot for less than ten seconds and then
refused any responsibility for any damage to the vehicle. Plaintiff also denied Anthony
Katsourakis ever removed any bug marks from the windshield of the Honda Pilot.
Plaintiff claimed Anthony Katsourakis did not examine the Honda Pilot long enough to
remove anything from the windshield. Plaintiff maintained he cleaned the windshield of
the Honda Pilot before meeting with Anthony Katsourakis and recalled Katsourakis at
no time during the meeting touched the Honda Pilot.
      {¶ 14} Plaintiff resubmitted photographs he took of the APBN, Inc. sandblasting
worksite minutes after his described damage event occurred. Plaintiff pointed out the
photographs depict APBN, Inc. personnel conducting sandblasting on the bridge area
“over the open lane of traffic” on Interstate 680 North without any mandated form of
enclosure over the work site. Plaintiff also pointed out a photograph he took depicts
“clouds of debris falling on the open lane of traffic.” Plaintiff resubmitted a photograph
he took depicting the windshield of his 2004 Honda Pilot.           Plaintiff advised this
photograph “clearly shows some of the dozens of small chips and gouges” claimed to
have been caused by debris falling from the sandblasting operation. From a review of
this photograph, the trier of fact is unable to discern what manner of windshield damage
is depicted. Additionally, plaintiff resubmitted a photograph depicting body damage to
his vehicle he described as “one of the dings that were created by the falling debris.”
From a review of this photograph, the trier of fact finds the damage depicted appears as
a circular indentation more likely than not caused by a hard pebble sized object
propelled at a high rate of velocity. The damage depicted is not consistent with damage
caused by falling minute sandblasting particulate descending at a slow rate of speed.
Plaintiff provided a hand drawn sketch of his vehicle pointing out the damaged areas.
The damages shown on the sketch appear to be confined to the hood, front fenders,
front of the roof, and windshield of the vehicle. Plaintiff argued “[t]he facts and photos
clearly demonstrate that the damage to my vehicle was caused by an overhead shower
of some type of abrasive debris.”      Plaintiff reasserted he is entitled to recover all
damages claimed.
      {¶ 15} 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
accident.   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 directly caused by
sandblasting activity of ODOT’s contractor on August 13, 2009.
      {¶ 16} 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 unreasonable
risk of harm is the precise duty owed by ODOT to the traveling public both under 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.
      {¶ 17} “If an injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in light of all the attending circumstances,
the injury is then the proximate result of 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. 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. In the instant claim, the trier of fact finds
plaintiff has failed to offer sufficient proof to establish that the damage to his vehicle
was caused by ODOT’s contractor conducting sandblasting operations. Despite the fact
APBN, Inc. totally disregarded ODOT specifications when engaged in sandblasting, the
trier of fact is not convinced uncontained sandblasting debris caused the damage
plaintiff claimed. Plaintiff has failed to prove that 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.




                               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




JONATHAN D. GOLDSTEIN

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 4

      Defendant

      Case No. 2009-09701-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:

Jonathan D. Goldstein             Jolene M. Molitoris, Director
1931 State Route 551              Department of Transportation
Enon Valley, Pennsylvania 16120   1980 West Broad Street
                                  Columbus, Ohio 43223
RDK/laa
4/8
Filed 4/21/10
Sent to S.C. reporter 8/20/10
