[Cite as Young v. Ohio Dept. of Transp., 2010-Ohio-4220.]

                                      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




JAY V. YOUNG

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-01484-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Jay V. Young, filed this action against defendant, Department of
Transportation (ODOT), alleging that his 1996 Dodge Stratus was substantially
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition in a roadway construction area on US Route 40 in the City of
Springfield. Specifically, plaintiff claimed that his car “bottomed out” while traveling at
the intersection of Western and Columbia in Springfield at a particular area where the
roadway pavement had been milled in preparation for repaving. According to plaintiff,
his 1996 Dodge Stratus “bottomed out” when the vehicle traveled across the transition
area where the milled roadway abutted existing pavement on both sides of the
intersection. It was noted that the air bags on the vehicle deployed breaking the left
front window and the motor was destroyed as well as the oil pan when the car
“bottomed out.” Plaintiff submitted a statement from his son, Jordan Young, who was
driving the car at the time of the related damage incident. Jordan Young recalled that
the incident occurred on October 11, 2009 between 12: 45 a.m. and 1:00 a.m. Plaintiff
seeks recovery of damages in the amount of $2,473.30, the complete stated cost of
automotive repair and towing expense. Plaintiff submitted documentation showing his
car was towed on three occasions, October 11, 2009, November 9, 2009, and
November 24, 2009. Plaintiff also submitted an “Auto Repair Order” dated January 12,
2010 estimating the total repair cost for his vehicle at $2,245.25. The filing fee was
paid.
        {¶ 2} Jordan Young, the driver of the 1996 Dodge Stratus on October 11, 2009,
provided the following narrative description of his recollection of the damage incident:
        {¶ 3} “I was driving down N Western Avenue and when I got to the intersection
of Western and Columbia (US Route 40) my air bags deployed as I was going through
the intersection and I put on my (brakes) and pushed my air bags down. When I was
coming through the light the road (went) from smooth to rough, there was about a 3 to 4
inch drop in the start of the intersection. The road was under construction and there
were no visible warning signs. I went through the light on Western and North Street and
made a quick right into the Marathon gas station. I got out and my driver’s side window
was shattered because the air bag hit it. I got down and lay in the front of my car and
something was leaking oil. I stood up and my friend drove by and he took me to the
[S]peedway down the road to get a quart of oil. I went back down and added the oil and
tried to make it home. I got as far as Snyder Park and Plum Street and my car stopped.
I tried to put more il in it at that point and it just leak right out. So I rolled the car back off
to the side of the road and parked it, then I walked home.”
        {¶ 4} Plaintiff also submitted a statement from Ryan Smith, who was a
passenger in the 196 Dodge Stratus on October 11, 2009. Smith wrote:
        {¶ 5} “We went through the light and the road went from smooth to (rough) and
then after we went under the light the road went from (rough) to smooth and that is
when the airbags deployed and the driver’s side window shattered. We stopped in the
middle of the road and pushed the airbags down then we went to the gas station and
(got) oil because we saw a leak. We added oil and started home. The car stopped at
Plum and Snyder Park and we had to roll it back in park it. There were no sign of
construction or cones or anything like that.”
        {¶ 6} Defendant acknowledged that the area where plaintiff’s described damage
event occurred was located within the limits of a working construction project under the
control of ODOT contractor, A & B Asphalt Corporation. Defendant explained that the
particular project “dealt with mill and fill for multiple intersections of US 40 in Clark
County.”    Defendant asserted that A & B Asphalt Corporation, by contractual
agreement, was responsible for any roadway damage occurrence mishaps within the
construction zone.   Therefore, defendant argued A & B Asphalt Corporation 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, defendant maintained an onsite personnel presence in the construction
project area.
       {¶ 7} 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
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 cause 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.
       {¶ 8} 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 negligence 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 particular construction work. See Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
      {¶ 9} Alternatively, defendant argued that neither ODOT nor A & B Asphalt
Corporation had any knowledge “of the pavement on US 40 prior to plaintiff’s incident.”
Defendant reported that the particular incident was stated to have occurred at milepost
11.97 on US Route 40 which is within the construction project limits and has an average
daily traffic volume between 10,300 and 12,1470.        Defendant related that ODOT
“records indicate that no calls or complaints were received at the Clark County Garage
regarding the pavement” at milepost 11.97 prior to the incident in question despite the
fact that daily traffic volume exceeds 10,000 vehicles.      Defendant contended that
plaintiff failed to produce evidence establishing that his property damage was
attributable to any conduct on either the part of ODOT or A & B Asphalt Corporation.
Defendant argued that plaintiff did not offer sufficient evidence to prove his damage was
caused by negligent roadway maintenance.
      {¶ 10} Defendant submitted copies of the “Daily Diary Report” chronicling work
performed by A & B Asphalt Corporation on the project in reference to roadway milling
operations. Defendant pointed out that roadway milling was last conducted prior to
plaintiff’s damage incident on October 7, 2009 and did not resume due to inclement
weather conditions. The submitted “Daily Diary Report” for October 7, 2009 recorded
that roadway milling was performed to a depth of 1.75" from the intact roadway surface.
Furthermore, defendant submitted a copy of an e-mail from ODOT Project Engineer,
Mark A. Stanley, who “performed a field review” of the construction project area.
Stanley confirmed that milling done at the intersection in question was of no greater
depth than 1.75". Also Stanley noted that “[t]here was not any manholes adjusted at
this intersection, and we only milled 1.75" maximum.” Defendant specifically denied
that the roadway was milled at any area to a depth of 3-4" as asserted by Jordan
Young.
      {¶ 11} Plaintiff filed a response arguing that defendant’s investigation report
should be stricken as untimely filed and judgment should be rendered in his favor based
on the pleadings. Plaintiff asserted that defendant did not comply with local rules by
filing the investigation report within sixty days of receipt of the complaint. The court
finds that the investigation report was filed within the sixty day time frame required by
local rules.   The investigation report shall not be stricken and plaintiff’s request for
judgment on the pleadings is denied.
       {¶ 12} Plaintiff reasserted that the damage to his car was proximately caused by
negligence on the part of ODOT and A & B Asphalt Corporation in maintaining a
hazardous roadway condition at the intersection in question. Plaintiff did not provide
any demonstrative evidence depicting the condition of the milled intersection on or
about October 11, 2009.
       {¶ 13} 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
incident.   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 his vehicle was directly caused by
construction activity of ODOT’s contractor prior to October 11, 2009. Plaintiff has not
submitted evidence to show that the milled roadway surface was particularly dangerous
or deviated from the exiting pavement conditions by as much as four inches.
       {¶ 14} 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. This 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. The court does not find Jordan
Young’s description of the damage incident to be persuasive.
       {¶ 15} Defendant may bear liability if it can be established if some act or
omission on the part of ODOT or its agents was the proximate cause of plaintiff’s injury.
This court, as the 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.
      {¶ 16} “If any 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. Evidence available tends to point out the roadway was maintained properly
under ODOT specifications.      Plaintiff failed to prove his 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.
      {¶ 17} 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; Rhodus, 67 Ohio App.
3d at 729, 588 N.E. 2d 864.       In the instant claim, plaintiff has failed to introduce
sufficient evidence to prove that defendant or its agents maintained a known hazardous
roadway condition. See Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-
AD, 2008-Ohio-4190. Evidence has shown that the repavement project complied with
ODOT specifications. Plaintiff has not provided evidence to prove that the roadway
area was particular defective or hazardous to motorists. Reed v. Ohio Dept. of Transp.,
Dist. 4, Ct. of Cl. No. 2004-08359-AD, 2005-Ohio-615. Plaintiff has failed to provide
sufficient evidence to prove that defendant was negligent in failing to redesign or
reconstruct the roadway repavement procedure considering plaintiff’s incident appears
to be the sole incident at this area. See Koon v. Hoskins (Nov. 2, 1993), Franklin App.
No. 93AP-642; also, Cherok v. Dept. of Transp., Dist. 4, Ct. of Cl. No. 2006-01050-AD,
2006-Ohio-7168.
      {¶ 18} It appears that the cause of the property damage claimed was the
negligent driving of Jordan Young. See Wieleba-Lehotzky v. Ohio Dept. of Transp.,
Dist. 7, Ct. of Cl. No. 2004-03918-AD, 2004-Ohio-4129.         Plaintiff has not proven
defendant maintained a hidden roadway defect. See Sweney v. Ohio Dept. of Transp.,
Dist. 8, Ct. of Cl. No. 2009-03649-AD, 2009-Ohio-6294.


                               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




JAY V. YOUNG

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-01484-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:

Jay V. Young                   Jolene M. Molitoris, Director
1711 Miracle Mile              Department of Transportation
Springfield, Ohio 45503        1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
4/26
Filed 5/5/10
Sent to S.C. reporter 9/2/10
