[Cite as Manross v. Ohio Dept. of Transp., 2010-Ohio-2028.]

                                      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




JACKIE MANROSS

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2009-07911-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} On August 21, 2009, at approximately 8:10 a.m., plaintiff, Jackie Manross,
was traveling south on Interstate 271, “before the Wilson Mills exit” in Cuyahoga
County, when her 2006 Honda Civic was struck by “a large rock” that “flew up” from the
roadway surface. Plaintiff pointed out that she was traveling through a construction
zone on Interstate 271 in an area where the roadway surface had been milled in
preparation for repaving. Plaintiff implied that the “large rock” that struck and damaged
the left front door of her car had been left on the roadway after the surface milling was
completed. Plaintiff asserted that the damage to her car was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in failing to
maintain the roadway free of defects, such as the rock debris.           Plaintiff filed this
complaint seeking to recover $533.80, the total cost of automotive repair needed
resulting from the August 21, 2009 damage occurrence. The filing fee was paid.
        {¶ 2} Defendant acknowledged that the area where the described incident
occurred was located within the limits of a construction project under the control of
ODOT contractor, The Shelly Company (Shelly). Defendant explained that the “project
dealt with resurfacing with asphalt concrete, pavement repair, guardrail installation,
signing and other related work from Mayfield Heights on I-271 in Cuyahoga County to I-
90 in Lake County.”       Defendant located the damage occurrence from plaintiff’s
description at state milepost 36.30 on Interstate 271; an area within the limits of the
construction zone under the control of Shelly.      Defendant asserted that Shelly, by
contractual agreement, was responsible for any roadway damage occurrences or
mishaps within the construction zone.      Therefore, ODOT argued that Shelly is the
proper party defendant in this action. 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 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 personnel maintained an onsite inspection presence in the work
zone.
        {¶ 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 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 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.
       {¶ 5} Alternatively, defendant argued that neither ODOT nor Shelly had any
knowledge “of rocks flying around on I-271 prior to plaintiff’s incident.” Defendant also
argued that plaintiff has failed to offer any evidence to prove her property damage was
caused by any conduct attributable to either ODOT or Shelly. Defendant submitted
records showing that Shelly performed roadway milling operations on Interstate 271
South from 7:00 p.m. on August 20, 2009 to 7:00 a.m. on August 21, 2009. The records
indicate that the milling operation ended at the Cuyahoga County line approximately two
miles north of the location that plaintiff stated her damage event occurred. Defendant
recorded that all roadway on Interstate 271 South in Cuyahoga County had already
been milled and repaved with the first layer of asphalt prior to the date of plaintiff’s
incident.
       {¶ 6} 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
construction activity of ODOT’s contractor prior to August 21, 2009.         Other than
plaintiff’s assertion there is no evidence to suggest that the debris that damaged
plaintiff’s car emanated from any roadway milling operation or other construction
activity.
        {¶ 7} Generally, in order to recover in any suit involving injury proximately
caused by roadway conditions including debris, plaintiff must prove that either:              1)
defendant had actual or constructive notice of the debris condition and failed to respond
in a reasonable time or responded in a negligent manner, or 2) that defendant, in a
general sense, maintains its highways negligently.           Denis v. Department of
Transportation (1976), 75-0287-AD. Plaintiff has not produced any evidence to indicate
the length of time that the debris was present on the roadway prior to the incident
forming the basis of this claim. No evidence has been submitted to show that defendant
had actual notice of the debris. Additionally, the trier of fact is precluded from making
an inference of defendant’s constructive notice, unless evidence is presented in respect
to the time that the debris appeared on the roadway.          Spires v. Ohio Highway
Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no indication
defendant had constructive notice of the debris.       Plaintiff has not produced any
evidence to infer that defendant, in a general sense, maintains its highways negligently
or that defendant’s acts caused the defective condition. Herlihy v. Ohio Department of
Transportation (1999), 99-07011-AD. 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; Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-AD, 2008-Ohio-
4190.




                               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
JACKIE MANROSS

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

         Case No. 2009-07911-AD

Clerk Miles C. Durfey


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.



                                                  ________________________________
                                                  MILES C. DURFEY
                                                  Clerk

Entry cc:

Jackie Manross                                    Jolene M. Molitoris, Director
9510 Greenvalley Drive                            Department of Transportation
Mentor, Ohio 44060                                1980 West Broad Street
                                                  Columbus, Ohio 4322
RDK/laa
1/13
Filed 1/27/10
Sent to S.C. reporter 5/7/10
