[Cite as Riemer v. Ohio Dept. of Transp. D-12, 2009-Ohio-7186.]

                                      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




FRANCES RIEMER

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION D-12

       Defendant

        Case No. 2009-07041-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On June 11, 2009, at approximately 6:00 p.m., plaintiff, Frances Riemer,
was traveling east on Interstate 90 in Lake County through a construction zone when
her 2008 Mercedes Benz C300W4 struck a raised sewer grate causing tire and wheel
damage to the vehicle.              The existing asphalt roadway pavement through the
construction zone had been milled in preparation for repaving with new asphalt overlay
and the sewer grate plaintiff’s car struck had been left higher than the roadway surface
due to the milling process. Plaintiff pointed out the exposed sewer grate was raised at
least six inches above the roadway surface after milling operations were completed.
Plaintiff recalled there were no pavement markings delineating lanes on the milled
roadway surface and her vehicle               struck the exposed sewer grate while she was
attempting to change lanes to exit from Interstate 90 onto State Route 91. Plaintiff
further recalled the sewer grate “remained unmarked (and) exposed . . . for several
weeks after the incident.” Plaintiff specifically located the damage-causing sewer grate
at “189 mile marker, approx. 200 feet south of it in the eastbound roadway prior to
actual exit (SR 91).” Plaintiff contended the damage to her car was proximately caused
by negligence on the part of defendant, Department of Transportation (ODOT), in failing
to notify motorists of the existence of the raised sewer grate by ensuring proper lane
markings were in place and placing signage or traffic control to advise motorists of the
condition created by the roadway milling. Plaintiff filed this complaint seeking to recover
$514.25, the total cost of replacement parts she incurred resulting from the June 11,
2009 incident. The filing fee was paid.
       {¶ 2} Defendant acknowledged that the area where plaintiff’s described damage
event occurred was located within the limits of a construction project under the control
of ODOT contractor, The Shelly Company (Shelly). Defendant explained the particular
project “dealt with grading, planning and resurfacing with asphalt concrete on I-90
between county mileposts 1.88 to 7.80 in Lake County.”          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 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.
       {¶ 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 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. DOT 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 an exposed sewer grate on I-90 prior to plaintiff’s incident.” Defendant
denied receiving any calls or complaints regarding a defective condition caused by an
exposed sewer grate. Defendant argued plaintiff failed to produce evidence to establish
her property damage was caused by conduct attributable to either ODOT or Shelly.
      {¶ 6} Records show Shelly performed milling operations on the eastbound lanes
of Interstate 90 during the early morning hours of June 11, 2009 with Shelly
subcontractor, Trafftech, Inc., applying temporary pavement markings on the roadway
and channelization on that same day.         Shelly representative, Russell Sherman,
Assistant Safety Director, drafted a letter (copy submitted) in reference to plaintiff’s
claim and noted the casting (sewer grate) plaintiff’s vehicle struck “was padded with
temporary material and is in the marked gore area not in a traveled lane.” Sherman
reported the casting was padded with cold patch material after the roadway surface was
milled on June 11, 2009.     Sherman explained the milling operation was performed
“according to the Ohio Department of Transportation specifications” and his
investigation “found that there was nothing out of the ordinary on the above reference
project on the day the alleged damage occurred.” Sherman provided photographs of
the roadway area taken on September 3, 2009 after repaving had been completed and
the roadway surface had been lined with pavement markings. The photographs depict
the casting (sewer grate) clearly showing it within an area of roadway not intended for
travel.
          {¶ 7} Plaintiff filed a response insisting “there were no pavement markings, lane
markings or any other area markings on the newly asphalted roadway” at the time of her
June 11, 2009 property damage incident. Plaintiff submitted a handwritten statement
from her husband, Dennis Kaufman, who recorded he drove on Interstate 90 through
the construction zone on or about June 11, 2009 and did not observe any lane
markings. Kaufman related the “sewer grate in question was totally exposed and raised
up at least 6-8 inches from the road that had been removed.”             Kaufman denied
observing any “barrier or protection over the sewer grate.”
          {¶ 8} 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 OBR64,
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 on June 11, 2009.             The evidence available also
establishes plaintiff’s incident occurred during daylight hours on a portion of the
roadway not intended for regular travel. Evidence is conflicting in regard to the issue of
whether or not the alleged damage-causing casting (sewer grate) was padded with cold
patch material.
          {¶ 9} 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.
       {¶ 10} “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 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.
       {¶ 11} This court has previously held that the Department of Transportation is not
to be held liable for damages sustained by individuals who suffered property damage
from a defective condition located off the portion of roadway intended for travel.
Colagrossi v. Department of Transportation (1983), 82-06474-AD. Generally, a plaintiff
is barred from recovery for property damage caused by a defect or any condition
located off the traveled portion of the roadway.
       {¶ 12} The gore area of a highway is designed to serve a purpose which may
include travel under emergency circumstances. It is for the trier of fact to determine
whether driving on the shoulder is a foreseeable and reasonable use of the gore area of
the highway. Dickerhoof v. City of Canton (1983), 6 Ohio St. 3d 128, 6 OBR 186, 451
N.E. 2d 1193. If a plaintiff sustains damage because of a defect located off the marked,
regularly traveled portion of a roadway, a necessity for leaving the roadway must be
shown. Lawson v. Department of Transportation (1977), 75-0612-AD. Plaintiff, in the
present action, has failed to produce an adequate reason for driving on a roadway area
not generally intended for travel despite the fact pavement markings may or may not
have been present.     Evidence available seems to point out the roadway area was
maintained properly under ODOT specifications. Plaintiff failed to prove 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. The evidence tends to show the sole cause of plaintiff’s damage was her own
driving maneuver. See Yokey v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-07425-AD,
2005-Ohio-456; also Lenaghan v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-06071-AD,
2008-Ohio-1206.




                               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




FRANCES RIEMER

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION, D-12

      Defendant

      Case No. 2009-07041-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:

Frances Riemer                 Jolene M. Molitoris, Director
38310 Ridge Road               Department of Transportation
Willoughby, Ohio 44094         1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
10/28
Filed 12/22/09
Sent to S.C. reporter 4/7/10
