[Cite as Robinson v. Ohio Dept. of Transp. , 2010-Ohio-5832.]

                                      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




REGINA ROBINSON

         Plaintiff

         v.

OHIO DEPARTMENT OF TRANSPORTATION

         Defendant
         Case No. 2010-04475-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



         {¶ 1} Plaintiff, Regina Robinson, filed this action against defendant, Department
of Transportation (ODOT), contending that her 1999 Chevrolet S10 Blazer was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
bridge spanning Interstate 71 in Franklin County.               Plaintiff explained that she was
traveling on Interstate 71 after exiting from East Broad Street in Columbus “and coming
under the bridge a rock fell and cracked my front window.” Plaintiff recalled that the
particular damage incident occurred on March 3, 2010. Plaintiff seeks damage recovery
in the amount of $189.21, the total cost of a replacement windshield. The $25.00 filing
fee was paid and plaintiff requested reimbursement of that cost along with her damage
claim.
         {¶ 2} Defendant advised that the particular section of Interstate 71 “on the date
of plaintiff’s alleged incident” was within the limits of a working construction project
under the control of ODOT contractor Terrance Construction Company Inc. (Terrance).
Defendant related that the construction project “dealt with repairing existing Bridge No.
FRA-40-1756 in Franklin County.”                Defendant explained that this bridge spanning
Interstate 71 was under           the control of Terrance and consequently ODOT had no
responsibility for any damage or mishaps on the roadway within the construction project
limits. Defendant asserted that Terrance 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.
       {¶ 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. 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.
Defendant submitted an e-mail from Terrance Project Coordinator, Charles Orlowski,
regarding the condition of the bridge spanning Interstate 71. Orlowski noted that it
“appears the bridge deck is falling apart.” Orlowski attached a photograph of the bridge
deck depicting a sizable area of concrete deterioration exposing several rows of rebar.
Orlowski reported that Terrance personnel were working on the bridge on March 3,
2010, but asserted that “our crew time sheets do not indicate any work that would have
led to debris falling from the bridge on or prior to the date of (plaintiff’s) damage.”
Orlowski further reported that Terrance Bridge Division Manager, Stewart Lovece,
corresponded with ODOT Construction Project Engineer, Thomas G. Makris, and
“suggested making full depth repairs as well as installing a false deck under the bridge
to catch debris falling from the failing (bridge) surface.” Copies of e-mails from Lovece
to Makris dated November 18, 2009 and November 27, 2009 were submitted. These e-
mails reference the condition of the bridge deck and request advisement about making
improvements. Additionally, Lovece notified Makris that an inspection of the bridge
revealed “heavy spalling.” The trier of fact finds that the object that damaged plaintiff’s
vehicle spalled from the bridge deck.
       {¶ 5} Defendant contended that “neither ODOT nor Terrance Construction had
notice of rocks falling on I-71 prior to plaintiff’s incident.”   Defendant asserted that
plaintiff did not provide any evidence to establish her damage was caused by any
conduct attributable to either ODOT or Terrance. Defendant argued that plaintiff failed
to offer evidence to prove that the bridge was negligently maintained.
       {¶ 6} Plaintiff filed a response.     Plaintiff recalled that the bridge spanning
Interstate 71 was not under construction at the time of her incident.
       {¶ 7} 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 an
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; Feichtner, at 354.
      {¶ 8} Ordinarily, in a claim involving roadway defects, plaintiff must prove that
either: 1) defendant had actual or constructive notice of the defective 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.      The evidence points to the conclusion that
plaintiff’s damage was proximately caused not only by negligent bridge maintenance but
that both ODOT and Terrance had actual notice of the deteriorated bridge condition.
      {¶ 9} This court has previously held ODOT liable for property damage resulting
from falling debris. Elsey v. Dept. of Transportation (1989), 89-05775-AD. Plaintiff has
proven, by a preponderance of the evidence, that she sustained property damage as a
result of defendant’s negligence regarding bridge maintenance.          Brickner v. ODOT
(1999), 99-10828-AD; Rini v. ODOT (1997), 97-05649-AD; McTear v. Ohio Dept. of
Transp., Dist. 12, Ct. of Cl. No. 2008-09139-AD, 2008-Ohio-7118.
      {¶ 10} 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. The 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. In the instant action, the trier of fact
finds that the statements of plaintiff concerning the origin of the damage-causing debris
are persuasive. Consequently, defendant is liable for the damage claimed, $189.21,
plus the $25.00 filing fee which may be reimbursed as compensable costs pursuant to
R.C. 2335.19. See Bailey v. Ohio Department of Rehabilitation and Correction (1990),
62 Ohio Misc. 2d 19, 587 N.E. 2d 990.


                               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




REGINA ROBINSON

      Plaintiff
        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant
        Case No. 2010-04475-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 plaintiff in the amount of $214.21, which includes the filing fee. Court costs are
assessed against defendant.




                                          MILES C. DURFEY
                                          Clerk

Entry cc:

Regina Robinson                           Jolene M. Molitoris, Director
121 Sherman Avenue                        Department of Transportation
Columbus, Ohio 43205                      1980 West Broad Street
                                          Columbus, Ohio 43223
RDK/laa
6/30
Filed 8/9/10
Sent to S.C. reporter 11/23/10
