[Cite as Risner v. Ohio Dept. of Transp., 2012-Ohio-6331.]



                                                         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



PAUL RISNER, Co-Admr., et al.

       Plaintiffs

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2011-03332

Judge Joseph T. Clark

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

        {¶ 1} On August 8, 2012, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On August 31, 2012, plaintiffs filed a response. The motion is
now before the court for a non-oral hearing.
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
Case No. 2011-03332                          -2-                                     ENTRY

       {¶ 4} Plaintiffs bring this action for wrongful death and survivorship arising out of
an automobile collision that caused the death of plaintiffs’ decedent, Amber N. Risner.
The accident occurred in the early morning of September 12, 2009, at the intersection of
Germany Road and State Route 32 in Pike County. The intersection was configured
such that motorists on Germany Road were required to stop for a stop sign and an
overhead flashing red light before crossing or turning onto State Route 32, a four-lane
divided highway. Motorists on State Route 32 were not required to stop, but were
warned of the intersection by way of advance warning signs and an overhead flashing
yellow light. The driver of the car in which Risner was a passenger approached the
intersection via northbound Germany Road and attempted to proceed across State
Route 32, whereupon the car was struck by a tractor-trailer traveling in the westbound
lanes of State Route 32.
       {¶ 5} In their complaint, plaintiffs claim that defendant was negligent in its design
and maintenance of the intersection, specifically with respect to the alleged lack of sight
distance available to motorists approaching the intersection from northbound Germany
Road, as well as the use of an overhead flashing light at the intersection rather than a
four-way stop-and-go light.      On May 8, 2012, the court granted partial summary
judgment in favor of defendant as to the decisions it made concerning what traffic
control devices to install at the intersection. As to the claim of insufficient sight distance,
the court determined that issues of material fact remained; defendant addresses those
issues in its present motion.
       {¶ 6} In order for plaintiffs to prevail upon their claim of negligence, they must
prove by a preponderance of the evidence that defendant owed the decedent a duty,
that defendant’s acts or omissions resulted in a breach of that duty, and that the breach
proximately caused the decedent’s injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio
St.3d 79, 2003-Ohio-2573, ¶ 8, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio
St.3d 75, 77 (1984).
Case No. 2011-03332                        -3-                                    ENTRY

       {¶ 7} “The duty element of a negligence claim may be established by common
law, legislative enactment, or the particular circumstances of a given case.” Estate of
Morgan v. Ohio Dept. of Transp., 10th Dist. Nos. 10AP-362 & 10AP-382, 2010-Ohio-
5969, ¶ 10. “Pursuant to R.C. 5501.11, ODOT has the responsibility to construct and
maintain highways in a safe and reasonable manner. However, the state is not an
insurer of the safety of its highways.” Rhodus v. Ohio Dept. of Transp., 67 Ohio App.3d
723, 729-730 (10th Dist.1990).
       {¶ 8} When acting in the course of its highway construction responsibilities,
defendant’s duty of care is to adhere to “the current written standards in effect at the
time of the planning, approval or construction of the site * * *.” Longfellow v. State, 10th
Dist. No. 92AP-549 (Dec. 24, 1992), citing Lunar v. Ohio Dept. of Transp., 61 Ohio
App.3d 143, 146 (10th Dist.1989) and Lopez v. Ohio Dept. of Transp., 37 Ohio App.3d
69, 71 (10th Dist.1987). “When there are no guidelines in place at the time of the act,
the proper standard of care is that of a reasonable engineer using accepted practices at
the time of the act.” Hurier v. Ohio Dept. of Transp., 10th Dist. No. 01AP-1362, 2002-
Ohio-4499, ¶ 25.
       {¶ 9} In support of its motion, defendant submitted the affidavit of Kathleen A.
King, P.E., who is employed by defendant as a Geometrics Engineer. King avers that
when defendant constructed the intersection, the applicable written standards that it
was required to follow were set forth in the July 30, 1993 edition of its Location and
Design Manual, portions of which are attached to the affidavit and authenticated therein.
See Rahman v. Ohio Dept. of Transp., 10th Dist. No. 05AP-439, 2006-Ohio-3013, ¶ 38
(Recognizing that the Location and Design Manual “establishes policies and standards
to follow when designing and maintaining highways in a reasonably safe condition.”).
       {¶ 10} King explains that the Location and Design Manual establishes standards
for both “intersection sight distance,” which is “the distance a motorist should be able to
see other traffic operating on the intersected highway so that the motorist can enter and
cross the highway safely,” and “stopping sight distance,” which is “the distance a
Case No. 2011-03332                         -4-                                   ENTRY

motorist should be able to see ahead so that he will be able to stop from a given design
speed.” In the present case, the sight distance relevant to the driver of the car in which
Risner was riding was intersection sight distance, whereas the sight distance relevant to
the driver of the tractor-trailer was stopping sight distance.
       {¶ 11} As King explains in her affidavit, although the Location and Design Manual
includes tables that set forth minimum sight distance values, the manual does not
impose a mandatory requirement to meet those minimum values.                  In regard to
intersection sight distance, however, section 201.3 states the following: “In those cases
where the table values from Figure 201-3 cannot reasonably be obtained, the minimum
sight distance available to the driver of the waiting vehicle should not be less than the
stopping sight distance for the design speed of the through roadway. * * * If the
minimum sight distance outlined above cannot be provided, additional safety measures
must be taken. These may include, but are not limited to, advance warning signs and
flashers and/or reduced speed limit zones in the vicinity of the intersection.”
       {¶ 12} Although there is some discrepancy in the sight distance measurements
calculated by King and plaintiffs’ expert, Daren E. Marceau, P.E., there is no dispute
that the relevant intersection sight distance is less than the applicable table value from
Figure 201-3. However, there is also no dispute that the relevant intersection sight
distance was not less than the relevant stopping sight distance. As such, the design of
the intersection conformed to the minimum sight distance standards set forth in the
Location and Design Manual.
       {¶ 13} Even though the Location and Design Manual only requires that additional
safety measures be taken at intersections where the minimum sight distance standards
cannot be provided, there is no dispute that additional safety measures (e.g., an
overhead flashing light and advance warning signs) were put in place in the interim
period between the construction of the intersection and the September 12, 2009
accident. Plaintiffs argue that when those devices were installed, defendant “had a duty
Case No. 2011-03332                        -5-                                    ENTRY

to upgrade the subject intersection to current design standards” set forth in later editions
of the manual that prescribed greater sight distance.
       {¶ 14} As previously stated, “[t]he state has a duty to maintain its highways in a
reasonably safe condition. * * * However, ‘[the state’s] duty to maintain state highways is
distinguishable from a duty to redesign or reconstruct.’ * * * ‘Maintenance involves only
the preservation of existing highway facilities, rather than the initiation of substantial
improvements.’” Galay v. Dept. of Transp., 10th Dist. No. 05AP-383, 2006-Ohio-4113, ¶
58, quoting Wiebelt v. Ohio Dept. of Transp., 10th Dist. No. 93AP-117 (June 24, 1993).
“Accordingly, ODOT does not have a duty to upgrade highways to current design
standards when acting in the course of maintenance.” Estate of Morgan at ¶ 12.
       {¶ 15} Reasonable minds can only conclude that the installation of an overhead
flashing light and advance warning signs constituted highway maintenance, not highway
construction. Accordingly, because defendant acted in the course of maintenance in
performing those functions, it was under no duty to upgrade the intersection to current
design standards.
       {¶ 16} Based on the foregoing, the court concludes that there are no genuine
issues of material fact and that defendant is entitled to judgment as a matter of law.
Accordingly, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. All other pending motions are DENIED as moot and all
previously scheduled events are VACATED.             Court costs are assessed against
plaintiffs. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.



                                          _____________________________________
                                          JOSEPH T. CLARK
                                          Judge

cc:
Case No. 2011-03332                 -6-                                  ENTRY


Amy S. Brown                         Douglas J. Blue
William C. Becker                    Kaitlin L. Madigan
Assistant Attorneys General          471 East Broad Street, Suite 1100
150 East Gay Street, 18th Floor      Columbus, Ohio 43215
Columbus, Ohio 43215-3130

001
Filed September 12, 2012
To S.C. Reporter January 28, 2013
