[Cite as Castrovinci v. Ohio Dept. of Transp., 2010-Ohio-3789.]

                                       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




WILLIAM C. CASTROVINCI

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2009-08667-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, William C. Castrovinci, filed this action alleging the windshields on
two of his vehicles were damaged by airborne stone debris while traveling on Interstate
271 through a working construction zone. Plaintiff recalled the windshield on his 2007
Isuzu Ascender was damaged at sometime between 7:30 a.m. and 8:15 a.m. on August
13, 2009, when his wife drove the vehicle on Interstate 271 to work. Plaintiff further
recalled the windshield on his 2003 Oldsmobile Alero was damaged at sometime
between 7:30 a.m. and 8:15 a.m. on August 14, 2009, when his wife drove that vehicle
to work. Plaintiff pointed out he “noticed the damage to the Ascender and Alero on the
weekend of August 15th & 16th (2009) when I drove both cars.” Plaintiff described and
specifically located the damage incidents relating, “my wife drove to work on I-271
South in Willoughby Hills, after the split from I90 to I-271 and approximately around mile
marker 39, stones (from the rough/ground road surface) were being thrown up by cars.”
According to plaintiff, the stones were left on the roadway surface after milling
operations had been completed in preparation for repaving and the windshields of his
vehicles were damaged when pelted by the milling remnants that were propelled from
the road surface by passing traffic. Plaintiff contended the damage to his cars was
proximately caused by negligence on the part of defendant, Department of
Transportation (ODOT) in maintaining hazardous conditions on Interstate 271 in a
construction area. Plaintiff filed this complaint seeking to recover $100.00, the total
stated cost, “to repair chipped windshield on both cars.” 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 39.00 on Interstate 271 in Lake County at the northern part
of the project 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 mandates, 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, 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 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 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 about milling debris on Interstate 271 prior to plaintiff’s two described
incidents.   Defendant related ODOT records (copy submitted), “indicate that no
complaints were received at the Lake County Garage for I-271 regarding debris prior to
Plaintiff Castrovinci’s incident.” Defendant also argued that plaintiff has failed to offer
any evidence to prove his property damage was caused by any conduct attributable to
either ODOT or Shelly. Defendant submitted a letter from Shelly Safety Director, Norm
Bauer, concerning work performed by Shelly personnel on Interstate 271. Bauer noted
that Shelly, “maintained the (construction area on Interstate 271) according to Ohio
Department of Transportation specifications.” Neither ODOT nor Bauer provided any
information in reference to when the pavement on Interstate 271 in the vicinity of
milepost 39.00 was milled prior to August 13, 2009.        Bauer did state that, “I have
contacted our foreman and project manager and found that there was nothing out of the
ordinary on the (site) on the day the alleged damage occurred.”
       {¶ 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 his vehicles were directly caused by
construction activity of ODOT’s contractor prior to August 13, 2009. In his response
plaintiff asserted, “Shelly Co. is responsible for controlling debris before opening road to
traffic.” Evidence is inconclusive concerning the issue of the origin of the damage-
causing debris. Plaintiff has not provided evidence to establish that debris were left on
the roadway after the pavement had been milled.
       {¶ 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 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.
       {¶ 8} Defendant advised plaintiff’s own description of the incidents show his
property damage was caused by unidentified third party motorists not affiliated with
either ODOT or Shelly. Defendant related plaintiff made the statement in his complaint
that, “stones were thrown up by cars,” that damaged the windshields of his vehicles.
Defendant denied liability based on the particular premise that it had no duty to control
the conduct of a third person except in cases where a special relationship exists
between defendant and either plaintiff or the person whose conducts needs to be
controlled. Federal Steel & Wire Corp. v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171,
543 N.E. 2d 769. However, defendant may still bear liability if it can be established if
some act or omission on the part of ODOT was the proximate cause of plaintiff’s injury.
This court, as 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. In his response,
plaintiff disputed defendant’s contention about not being responsible for damage caused
by passing motorists.
       {¶ 9} “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 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.
       {¶ 10} 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 incidents 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 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; 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




WILLIAM C. CASTROVINCI

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2009-08667-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:

William C. Castrovinci                          Jolene M. Molitoris, Director
11635 Twin Oaks Trail           Department of Transportation
Chardon Twp., Ohio 44024-9149   1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
3/11
Filed 4/8/10
Sent to S.C. reporter 8/13/10
