[Cite as McMichael v. Ohio Dept. of Transp., 2011-Ohio-7072.]




                                                       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




ROBERT L. MCMICHAEL

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

Case No. 2011-10673-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, Robert McMichael, filed this action against defendant, Ohio
Department of Transportation (ODOT), alleging his car received paint damage at
approximately 10:00 a.m. on August 16, 2011, while ODOT personnel were applying
fresh white edgeline paint to the roadway. According to plaintiff, “there were no cones
or signs to indicate painting was done and that paint was wet. Also the paint crew &
machine were nowhere to be seen. I obviously got into the new paint and slopped paint
onto wheel wells rocker panel and rear tire. This was not noticed until the following day
as it was on the passenger side of car.” Plaintiff contended the paint damage to his
vehicle was proximately caused by negligence on the part of ODOT in conducting road
painting operations. Plaintiff seeks recovery of damages in the amount of $187.00 for
paint removal costs. The filing fee was paid.
        {¶2}    Defendant determined that plaintiff’s car was splattered with paint “at US
250 and CR 501 which is milepost 15.51 in Wayne County.” Defendant acknowledged
ODOT personnel were painting the edge lines and center line on US 250 between
Case No. 2006-03532-AD                    -2-                MEMORANDUM DECISION




Case No. 2006-03532-AD                    -2-                MEMORANDUM DECISION



mileposts 14.00 and 24.40 on August 16, 2011. Defendant explained two trucks were
involved in the painting operation, a paint striper and a follow truck, with the follow truck
approximately 1500 feet behind the striper. Defendant pointed out that there are wet
paint signs on the striper with arrows pointing to the center and edge lines. In addition,
defendant maintained that the paint used is specially formulated to be quick-drying,
usually within two minutes. Defendant noted that US 250 is a flat, straight road and that
based upon how slow the painting operation progresses, and how far apart the vehicles
are spaced, “it would not be possible for the vehicles to be beyond sight distance in less
than two (2) minutes, the time it would take the paint to dry.”
       {¶3}   Defendant denied any liability in this matter arguing that plaintiff did not
offer sufficient evidence to prove his damage was caused by any conduct attributable to
ODOT. Defendant advised that the painting crew used all proper traffic control during
the painting operation and consequently, defendant contended ODOT discharged any
duty of care owed to the motoring public.
       {¶4}   Defendant submitted a statement from ODOT employee, Doug Hickey,
regarding his knowledge of pavement marking paint characteristics. Hickey opined that
“for someone to get wet paint on their car or truck and not see any paint crew I would
Case No. 2006-03532-AD                       -3-                 MEMORANDUM DECISION



say that would be unlikely. They may have driven around the follow truck and got into
the wet paint. If that happened they would have seen all of the warning signs and
trucks with their strobes on going real slow at about 8 mph.”                In addition, ODOT
engineer Matt Walters stated that the paint is applied “at a rate to produce 16 mils of
paint thickness on the pavement” and a dry time of two minutes or less for white and
yellow pavement marking paint.
       {¶5}    Plaintiff filed a response pointing out he has seen many paint stripers in
action during the five decades he has been driving and that those painting operations
utilized orange cones in the area to warn motorists. However, plaintiff insisted there
were no orange cones in place on US 250 on the day of his incident. Defendant did not
submit any written statements from the ODOT employees involved in the August 16,
2011 painting.     Defendant did not ascertain that stationary "Wet Paint" signs were
posted or that traffic control cones were positioned in the painting area, and plaintiff
maintained the signs and cones were not in place. In addition, plaintiff asserted he
never saw any trucks painting or warning of the painting operations in progress and he
denied ever passing either the follow truck or the paint striper.                Finally, plaintiff
suggested that defendant’s equipment malfunctioned in that an excessive amount of
white paint was applied such that it remained wet well after the two-minute time period
allotted. Plaintiff recalled that the paint on his car “was not just a little splatter of paint; it
was extremely thick and took two men 4 hours at a professional garage to clean off.”
       {¶6}    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
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Case No. 2006-03532-AD                  -4-              MEMORANDUM DECISION



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.
      {¶7}   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.
      {¶8}   Plaintiff has the burden of proof to show his property damage was the
Case No. 2006-03532-AD                   -5-                MEMORANDUM DECISION



direct result of the failure of defendant’s agents to exercise ordinary care in conducting
roadway painting operations. Brake v. Department of Transportation (2000), 99-12545-
AD. A failure to exercise ordinary care may be shown in situations where motorists do
not receive adequate or effective advisement of an ODOT painting activity.            See
Hosmer v. Ohio Department of Transportation, Ct. of Cl. No. 2002-08301-AD, 2003-
Ohio-1921.
      {¶9}   “If an injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of the 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.
      {¶10} The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to
believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. In the instant action, the trier of fact
finds that the statements of plaintiff concerning both the thickness of the paint on his
vehicle and the lack of any notice that a painting operation was in place are persuasive.
      {¶11} In the present action, plaintiff's evidence tends to indicate he did not
Case No. 2006-03532-AD                    -6-                MEMORANDUM DECISION




Case No. 2006-03532-AD                    -6-                MEMORANDUM DECISION



receive adequate warning of the ODOT painting activity since stationary signs and
traffic control cones were not used.       Therefore, defendant's attempts at notifying
motorists of the painting operation were ineffective pertaining to plaintiff. Thus, plaintiff
has provided sufficient proof to establish his vehicle received paint damage as a result
of negligent acts or omissions on the part of defendant. Hosmer. Broz v. Ohio Dept. of
Transp., Ct. of Cl. No. 2004-08863-AD, 2005-Ohio-453; Swank v. Ohio Dept. of Transp.,
Ct. of Cl. No. 2009-08608-AD, 2010-Ohio-2316. Defendant is liable to plaintiff in the
amount of $187.00, plus the $25.00 filing fee, which may be reimbursed as
compensable costs pursuant to R.C. 2335.19.           See Bailey v. Ohio Department of
Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.
Case No. 2006-03532-AD                  -7-               MEMORANDUM DECISION




                                              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




ROBERT L. MCMICHAEL

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

      Case No. 2011-10673-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 plaintiff in the amount of $212.00, which includes the filing fee. Court costs are
Case No. 2006-03532-AD          -8-             MEMORANDUM DECISION




Case No. 2006-03532-AD          -8-             MEMORANDUM DECISION



assessed against defendant.




                                DANIEL R. BORCHERT
                                Deputy Clerk

Entry cc:

Robert L. McMichael             Jerry Wray, Director
4418 Millbrook Road             Department of Transportation
Wooster, Ohio 44691             1980 West Broad Street
                                Columbus, Ohio 43223
SJM/laa
12/8
Filed 12/9/11
Sent to S.C. reporter 5/10/12
