[Cite as Hudson v. Ohio Dept. of Pub. Safety, 2012-Ohio-3239.]



                                                        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




LEE HUDSON

       Plaintiff

       v.

OHIO DEPARTMENT OF PUBLIC SAFETY

       Defendant

        Case No. 2011-11556-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


                                          FINDINGS OF FACT
        {¶1}       On October 3, 2011, plaintiff, Lee Hudson, filed a complaint against
defendant, Ohio Department of Public Safety. Plaintiff asserts that on September 17,
2011, at approximately 8:00 a.m., while traveling on Interstate 70 east, he entered a
construction zone.1 Plaintiff recalled that traffic “was directed by orange cones from the
center lane to the right lane, the right lane had lower pavement level and it was a big
drop off. About a 1/4 mile later we were directed by the cones back into the center lane
crossing over the new pavement.” According to plaintiff, “[t]he extreme difference in
heights of pavement and the sharpness of the edge blew out our passenger front tire,
along with about 30 other cars.” Plaintiff related that “police were on site but only after
the cause of roadway no police were in front of location to warn drivers.” Plaintiff seeks
damages in the amount of $158.58, for a new tire as the result of negligence by
defendant in diverting traffic onto the unfinished roadway without providing adequate

        1
            Evidence in the file establishes that the damage event occurred on September 18, 2011.
warning to motorists concerning this hazardous condition. Plaintiff submitted the filing
fee with his complaint.
       {¶2}    Defendant denied liability and argued that OSP “did not breach its duty to
safely maintain the crash scene.” Defendant explained that a tractor-trailer had crashed
on I-70 and that it took several hours to extricate the driver, unload the trailers, and right
the vehicle.    According to defendant’s Trooper Himes, deputies from the Franklin
County Sheriff’s Office were on scene initially and had directed traffic from the center
and left lanes onto the right lane which had been closed to traffic as it was under
construction. Thus defendant chose to continue diverting traffic onto the previously
milled right lane rather than shutting down the freeway completely.                Defendant
explained that for over six hours traffic was directed around the crash site in this manner
and no one experienced a flat tire. Defendant also received assistance from the Ohio
Department of Transportation (ODOT) to “maintain a safe orderly traffic flow and
effectively detour traffic.”   Defendant concluded that a safe traffic pattern was
maintained and that any harm to plaintiff was not foreseeable.            Finally, defendant
argued plaintiff’s negligent driving was a proximate cause of the injury in that plaintiff
failed to exercise the requisite amount of caution necessary to safely transition from the
right lane back onto the center and left lanes of the interstate.       Plaintiff did not file a
response.
                                   CONCLUSIONS OF LAW
       {¶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. 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.
       {¶4}    R.C. 2743.02 states, in pertinent part:
        {¶5}     “(A)(3)(a) Except as provided in division (A)(3)(b) of this section, the state
is immune from liability in any civil action or proceeding involving the performance or
nonperformance of a public duty,2 including the performance or nonperformance of a
public duty that is owed by the state in relation to any action of an individual who is
committed to the custody of the state.
        {¶6}     “(b) The state immunity provided in division (A)(3)(a) of this section does
not apply to any action of the state under circumstances in which a special relationship
can be established between the state and an injured party. A special relationship under
this division is demonstrated if all of the following elements exist:
        {¶7}     “(i) An assumption by the state, by means of promises or actions, of an
affirmative duty to act on behalf of the party who was allegedly injured;
        {¶8}     “(ii) Knowledge on the part of the state's agents that inaction of the state
could lead to harm;
        {¶9}     “(iii) Some form of direct contact between the state's agents and the
injured party;
        {¶10} “(iv) The injured party's justifiable reliance on the state's affirmative
undertaking.”
        {¶11} The trier of fact determines that defendant did not have direct contact with
plaintiff prior to the damage event and that therefore, no special relationship existed
between defendant and plaintiff on September 18, 2011. Accordingly, defendant owed
no duty to plaintiff and is entitled to immunity.
        {¶12} “Furthermore, the common law of Ohio imposes a duty of reasonable care
upon motorists that includes the responsibility to observe the environment in which one
is driving. See, e.g., Hubner v. Sigall (1988), 47 Ohio App. 3d 15, at 17, 546 N.E.2d
1337.” Shortridge v. Ohio Dep't of Pub. Safety (1997), 90 Ohio Misc. 2d 50, 54. Thus,
even
        {¶13} if plaintiff could prove defendant acted negligently, the trier of fact finds
plaintiff’s failure to observe his environment and take necessary precautions when


        2
         R.C. 2743.01 (E) (1) states “‘Public duty’ includes, but is not limited to, any statutory, regulatory,
or assumed duty concerning any action or omission of the state involving any of the following:
        “(a) Permitting, certifying, licensing, inspecting, investigating, supervising, regulating, auditing,
monitoring, law enforcement, or emergency response activity;
        “(b) Supervising, rehabilitating, or liquidating corporations or other business entities.”
changing lanes exceeded any negligence on the part of defendant.   Accordingly,
plaintiff’s 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




LEE HUDSON

        Plaintiff

        v.

OHIO DEPARTMENT OF PUBLIC SAFETY

        Defendant

        Case No. 2011-11556-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:

Lee Hudson                                       Bridget Coontz
4336 Gorman Avenue                               Assistant Attorney General
Englewood, Ohio 45322                            Ohio State Highway Patrol, Legal
                                                 1970 West Broad Street, Suite 531
                                                 Columbus, Ohio 43223
011
Filed 6/5/12
sent to S.C. Reporter 7/18/12
