[Cite as Waitt v. Ohio Dept. of Transp., 2020-Ohio-2839.]


ALDEN WAITT                                            Case No. 2019-00989AD

        Plaintiff                                      Deputy Clerk Daniel R. Borchert

        v.                                             MEMORANDUM DECISION

OHIO DEPARTMENT OF
TRANSPORTATION

        Defendant



        {¶1}     Alden Waitt (“plaintiff”) filed this claim against the Ohio Department of
Transportation (“ODOT”), to recover damages which occurred when her 2007 Subaru
Forester drove through wet tar on May 2, 2019, while traveling on State Route (“SR”)
104 between Stringtown Road and White Road in Franklin County, Ohio. This road is a
public road maintained by ODOT. Plaintiff’s vehicle sustained damages in the amount
of $561.69. Plaintiff submitted the $25.00 filing fee with the form complaint.
        {¶2}     Plaintiff alleges the area where plaintiff had her accident was a
construction zone. Further, plaintiff claims ODOT had contracted with Strawser Paving
Company to do certain construction work on this section of SR 104 between Stringtown
Road and White Road in Franklin County.
        {¶3}     In the Investigation Report, ODOT indicates that the incident involving
plaintiff’s vehicle occurred on SR 104 between Stringtown Road and White Road in
Franklin County between mile markers 4.4 and 4.9. The agency states that there was
no ongoing construction project being undertaken by ODOT in that area. Additionally,
the agency maintained that it was not aware of any wet tar in that area immediately prior
to plaintiff’s accident. However, the agency never specifically states whether Strawser
Paving Company, or any other hired contractor, was performing work for ODOT on the
date of the incident.
Case No. 2019-00989AD                      -2-              MEMORANDUM DECISION



      {¶4}   In general, defendant has a duty to maintain its highways in a reasonably
safe condition for the motoring public. Knickel v. Ohio Department of Transportation, 49
Ohio App.2d 335, 361 N.E.2d 486 (10th Dist. 1976). However, defendant is not an
absolute insurer of the safety of its highways. See Kniskern v. Township of Somerford,
112 Ohio App.3d 189, 678 N.E.2d 273 (10th Dist. 1996); Rhodus v. Ohio Dept. of
Transp., 67 Ohio App.3d 723, 588 N.E.2d 864 (10th Dist. 1990). Generally, a defendant
is only liable for roadway conditions of which it has notice of but fails to correct.
Bussard v. Dept. of Transp., 31 Ohio Misc.2d 1, 507 N.E.2d 1179 (Ct. of Cl. 1986).
      {¶5}   In a case where there is a hired contractor, 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-159.
      {¶6}   There are some circumstances in which ODOT may not be liable for the
damage to plaintiff’s vehicle. See Gore v. Ohio Department of Transportation, 10th Dist.
No. 02AP-996, 2003-Ohio-1648.        In Gore, the facts involved mowing operations
performed by an independent contractor. The Court of Appeals in Gore found that
grass cutting “is not the kind that cannot be accomplished without inherent risk of harm
to others, nor is it a type that in the ordinary course of performing it harm would be
expected. Rodic v. Koba, 8th Dist. No. 77599, 2000 Ohio App. LEXIS 5715 (Dec. 7,
2000). ODOT had no reason to believe that the work, if done properly, would cause
injury to anyone.   2000 Ohio App. LEXIS 5715 at *10.          ODOT can contract with
independent contractors and should require independent contractors to carry sufficient
insurance to cover whatever liability risks are involved. Stated in the words of the third
assignment of error, we believe that the duty to cut grass on interstate highways is
‘delegable to [an] independent contractor’ and that no liability arises from such
Case No. 2019-00989AD                        -3-              MEMORANDUM DECISION



delegation, including the obligation to look for movable objects before mowing an area.”
Gore at ¶ 31.
      {¶7}      However, Gore went on to state, “Work is inherently dangerous when it
creates a peculiar risk of harm to others unless special precautions are taken.” See
Covington & Cincinnati Bridge Co. v. Steinbrock & Patrick, 61 Ohio St. 215, 55 N.E.
618, (1899) paragraph one of the syllabus; 2 Restatement of the Law 2d, Torts, Section
427; Prosser & Keeton at 512-513, Section 71.            Under those circumstances, the
employer hiring the independent contractor has a duty to see that the work is done with
reasonable care and cannot, by hiring an independent contractor, insulate himself or
herself from liability for injuries resulting to others from the negligence of the
independent contractor or its employees. Covington at paragraph one of the syllabus.
      {¶8}      “To fall within the inherently-dangerous-work exception, it is not necessary
that the work be such that it cannot be done without a risk of harm to others, or even
that it be such that it involves a high risk of such harm. It is sufficient that the work
involves a risk, recognizable in advance, of physical harm to others, which is inherent in
the work itself.” 2 Restatement of the Law 2d, Torts, at 416, Section 427, Comment b.
      {¶9}      “The inherently-dangerous-work exception does apply, however, when
special risks are associated with the work such that a reasonable man would recognize
the necessity of taking special precautions. The work must create a risk that is not a
normal, routine matter of customary human activity, such as driving an automobile, but
is rather a special danger to those in the vicinity arising out of the particular situation
created and calling for special precautions. 2 Restatement of the Law 2d, Torts, at 385,
Section 413, Comment b; Prosser & Keeton at 513-514, Section 71.’ Id.” Gore at ¶ 20,
21 & 23.
      {¶10} Thus, any claim that liability for any damages, occurrences, or mishaps is
imputed to Strawser Paving Company, or any other hired independent contractor, is
without merit as this court has already determined construction work is an inherently
Case No. 2019-00989AD                       -4-              MEMORANDUM DECISION



dangerous activity. However, in order for the plaintiff to prevail on a claim for damage to
motor vehicles while traveling in a construction zone, the court may only pass judgment
on whether the plaintiff has shown that ODOT breached its duty to the public in
managing the contractor and ensuring the safety of the public within the construction
zone. ODOT could be found negligent in this type of case only if it failed to properly
manage the contractor by reasonably inspecting the construction site and the work
performance of the contractor, or if the agency knew or should have known about the
condition that damaged plaintiff’s vehicle and failed to manage the contractor.
      {¶11} Given plaintiff’s undisputed claim that an unmarked vehicle was
performing paving activities on an area of road which ODOT has jurisdiction, the Court
finds that it is more likely than not that plaintiff drove through an active construction
zone. As we consider whether ODOT breached its duty to the public in keeping the
construction area safe, the court must take into account that this was an active
construction zone. Ohio law is clear that ODOT cannot guarantee the same level of
safety during a highway construction project as it can under normal traffic conditions.
Feichtner v. Ohio Dept. of Transp., 114 Ohio App.3d 346, 354, 683 N.E.2d 112 (1995).
The test is whether, under the totality of the circumstances, “ODOT acted sufficiently to
render the highway reasonably safe for the traveling public during the construction
project.” Basilone v. Ohio Dept. of Transp., 1st Dist. No. 00AP-811, 2001 WL 118602
(Feb. 13, 2001) citing Feichtner, and Lumbermens Mut. Cas. Co. v. Ohio Dept. of
Transp., 49 Ohio App.3d. 129, 551 N.E.2d 215 (1988).
      {¶12} Plaintiff filed a response to defendant’s Investigation Report.
      {¶13} Having considered the evidence in the claim file, the court finds the
plaintiff has submitted sufficient evidence that, under the totality of the circumstances,
ODOT failed to properly manage an independent contractor’s work performance which
resulted in property damage to plaintiff’s vehicle. The court finds defendant liable to
plaintiff in the total amount of $561.69, plus the $25.00 filing fee which may be
Case No. 2019-00989AD                       -5-              MEMORANDUM DECISION



reimbursed as compensable damages pursuant to the holding in Bailey v. Ohio
Department of Rehabilitation and Correction, 62 Ohio Misc.2d 19, 587 N.E.2d 990 (Ct.
of Cl. 1990).




ALDEN WAITT                                   Case No. 2019-00989AD

         Plaintiff                            Deputy Clerk Daniel R. Borchert

         v.                                   ENTRY OF ADMINISTRATIVE
                                              DETERMINATION
OHIO DEPARTMENT OF
TRANSPORTATION

         Defendant

          {¶14} 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 the plaintiff in the amount of $586.69, which includes the reimbursement of
the $25.00 filing fee. Court costs are assessed against defendant.




                                           DANIEL R. BORCHERT
                                           Deputy Clerk

Filed 3/26/20
Sent to S.C. reporter 5/7/20
