[Cite as Foster v. Ohio Dept. of Transp., 2010-Ohio-6642.]

                                       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




SARAH FOSTER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-06044-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Sarah Foster, filed this action against defendant, Department of
Transportation (ODOT), contending that her 1999 Ford Mustang was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a bridge spanning
Interstate 75 in Montgomery County. In her complaint, plaintiff described her particular
damage occurrence noting: [a]t 0730 on October 27, 2009 I was traveling southbound
on I75, as I entered the exit for Route 4 towards Fairborn and drove under an overpass I
heard a loud thud and noticed an unknown substance on my car hood and windshield
that I mistook for mud as it was raining that day.” Plaintiff recalled when she observed
her car a few days after the described incident she discovered the substance that struck
her vehicle was actually wet concrete that had dried in the interim. Plaintiff related the
dried “concrete (that adhered to her vehicle) cannot be removed without causing further
damage and what has blown off has now taken the paint with it leaving the car at a high
risk for rusting.” Plaintiff submitted photographs depicting dried concrete splatter and
paint chipping on the passenger door, hood, roof, window, and windshield wiper on her
1999 Ford Mustang. Plaintiff requested damage recovery in the amount of $1,171.44,
the total cost of removing concrete from the car and conducting spot painting. The filing
fee was paid.
       {¶ 2} Defendant advised that particular section of Interstate 75 “on the date of
plaintiff’s alleged incident,” was within the limits of a working construction project under
the control of ODOT contractor, Kokosing Construction Company, Inc. (Kokosing).
Defendant related the specific construction project “dealt with grading, draining, paving,
with asphalt concrete on an asphalt concrete base, reconstruction numerous structures
as well as building several new bridges, constructing various retaining walls and
updating traffic control and lighting on I-75 in Montgomery County.”             Defendant
explained the bridge spanning Interstate 75 described in plaintiff’s complaint was
located “at county milepost 13.46 which is within the project limits.” Defendant argued
this section of roadway was under the control of Kokosing and consequently ODOT had
no responsibility for any damage or mishaps on the roadway within the construction
project limits.   Defendant asserted that Kokosing, by contractual agreement, was
responsible for maintaining the roadway in the construction area, although all work
performed was subject to ODOT requirements and specifications. 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 roadway section. Evidence has shown ODOT maintained an onsite
inspection presence within the limits of the project area.
       {¶ 3} For plaintiff to prevail on a claim of negligence, she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her 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 she 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.
       {¶ 4} Defendant has the duty to maintain its highway 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 neither ODOT nor Kokosing had any
“notice of pieces of concrete or debris on I-75 prior to plaintiff’s incident.” Defendant
pointed out that ODOT “records indicate that no calls or complaints were received at the
Montgomery County Garage regarding the debris in question” at milepost 13.46 prior to
plaintiff’s property damage event. Defendant advised, “[i]t should be noted that this
portion of I-75 has an average daily traffic volume between 86,630 and 100,530,
however, no other complaints were received 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 her
property damage was attributable to conduct on either the part of ODOT or Kokosing.
       {¶ 6} Defendant submitted a copy of an e-mail from Kokosing representative,
Pamela LeBlanc referencing work performed on the bridge spanning Interstate 75 on
October 27, 2009.      LeBlanc acknowledged Kokosing personnel “were working on
approach parapets, forming transitions” on Bridge 1396 on October 27, 2009. LeBlanc
noted “[w]e (Kokosing) were doing nothing over the road (Interstate 75) or on the deck
itself.” LeBlanc expressed the opinion “[i]t would not be possible for anything to fall onto
traffic from where we (Kokosing) were positioned.” With her e-mail LeBlanc submitted
copies of Kokosing Daily Job Reports for October 26, 2009 and October 27, 2009.
According to one submitted Job Reports for October 26 and October 27, 2009,
Kokosing personnel worked on Bridge 1396 and reported no accidents.
      {¶ 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
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 her vehicle was directly caused by
bridge construction activity of ODOT’s contractor on October 27, 2009.
      {¶ 8} 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.
      {¶ 9} “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 her vehicle
was caused by ODOT’s contractor conducting bridge construction activity. The trier of
fact is not convinced wet concrete emanating from bridge construction on Interstate 75
fell upon plaintiff’s vehicle causing the damage plaintiff claimed. Plaintiff has failed to
prove that her 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




SARAH FOSTER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-06044-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:

Sarah Foster                   Jolene M. Molitoris, Director
1805 Conwood Drive             Department of Transportation
Troy, Ohio 45373               1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
9/14
Filed 10/28/10
Sent to S.C. reporter 2/2/11
