[Cite as Bodden v. Dept. of Transp., 2011-Ohio-6940.]



                                      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




PAUL H. BODDEN

       Plaintiff

       v.

THE DEPT. OF TRANSPORTATION

       Defendant

Case No. 2011-07303-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, Paul Bodden, stated he was traveling south on Interstate 77 near
the “96 mile marker” at about 4:16 p.m. on October 12, 2010, when “a yellow mowing
vehicle or vehicles on the right side (west berm) of the highway within the right-of-way,
ran its mower(s) into what I assume was a gravel deposit.           A hail of stones was
projected by and from the mower blades and they flew from the deposit onto the
highway striking several cars, including mine, with heavy stones damaging my car with
multiple ‘pock marks’. * * * The 20-or so small dents extended all along the right side of
my car, from the front fender to the rear bumper.” After the incident described, plaintiff
contacted the Tuscarawas County engineer who informed him that the defendant,
Department of Transportation (“DOT”), was responsible for berm grass cutting
operations along Interstate 77.
        {¶2}    Plaintiff asserted the damage to his car caused by the mowing activity was
attributable to acts of defendant. Consequently, plaintiff filed this complaint seeking to
recover $1,124.89, the cost to his insurance company for repairing the damage, mileage
expense for plaintiff to travel to and from the repair facility, and reimbursement both of
plaintiff’s $50.00 deductible and of the $25.00 filing fee. The filing fee was paid.
       {¶3}   Defendant asserted no DOT tractors were mowing along the particular
area of Interstate 77 on October 12, 2010.         Defendant explained DOT contractor,
Brypan, was engaged to conduct mowing operations along Interstate 77 from May 17,
2009 to October 22, 2010. Defendant further explained Brypan owns and uses red
tractors for mowing. Defendant denied receiving any mowing complaints in the general
vicinity of plaintiff’s damage event. In addition, defendant denied DOT performed any
mowing along Interstate 77 near plaintiff’s incident between April 1, 2010, and
October12, 2010. DOT maintenance records support this assertion.
       {¶4}   Plaintiff filed a response asserting that his description of the mowing
vehicles was merely a guess and that during the incident a cloud of dust obscured
plaintiff’s view of the mower or mowers.
       {¶5}   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. Furthermore, the duty to cut grass on highways is
delegable to an independent contractor such as Brypan and consequently, no liability
shall attach to DOT for damage caused by the negligent acts of the independent
contractor engaged in mowing operations. See Gore v. Ohio Dept. of Transp., Franklin
App. No. 02AP-996, 2003-Ohio-1648; Cwalinski v. Ohio Dept. of Transp., 2003-06778-
AD, 2003-Ohio-5561.
       {¶6}   When maintenance is performed by DOT personnel, defendant must
exercise due diligence in conducting such maintenance and repair of highways.
Hennessy v. State of Ohio Highway Department (1985), 85-02071-AD.                 This duty
encompasses a duty to exercise reasonable care in conducting its roadside
maintenance activities to protect personal property from the hazards arising out of these
activities. Rush v. Ohio Dept. of Transportation (1992), 91-07526-AD.
       {¶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, 81, 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.
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 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}   Plaintiff has not proven, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to him or that his damage was proximately
caused by defendant’s negligence. Plaintiff failed to show the damage to his car was
connected to any conduct under the control of defendant, or any negligence on the part
of defendant.    Taylor v. Transportation Dept. (1998), 97-10898-AD; Weininger v.
Department of Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of
Transportation (2000), 2000-04758-AD. Consequently, plaintiff’s claim is denied.
                                 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




PAUL H. BODDEN

        Plaintiff

        v.

THE DEPT. OF TRANSPORTATION

        Defendant

Case No. 2011-07303-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:

Paul H. Bodden                                    Jerry Wray, Director
71 York Drive                                     Department of Transportation
Hudson, Ohio 44236                                1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
8/24
Filed 8/31/11
Sent to S.C. reporter 1/19/12
