[Cite as LaTourette v. Ohio Dept. of Transp., 2010-Ohio-2187.]

                                      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




ROBERT A. LATOURETTE

       Plaintiff

       v.

THE OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-08772-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} On October 19, 2009, at approximately 6:30 p.m., plaintiff, Robert A.
LaTourette, was traveling north on Interstate 77 through a construction zone, “between
the Wallings (and) Rockside/Seven Hills Road exits,” when his 2003 Volkswagen
Passat struck a raised manhole cover causing substantial suspension damage to the
vehicle. Plaintiff related that this particular section of Interstate 77 has “many areas in
the far left lane where there are man holes and built up pavement around the
construction barriers.” Plaintiff pointed out that the damage-causing manhole his car
struck was elevated from the roadway surface and difficult to avoid due to the presence
of construction barriers.         Plaintiff asserted that the damage to his automobile was
proximately caused by negligence on the part of defendant, Department of
Transportation (ODOT), in failing to correct a hazardous condition in a roadway
construction area. Plaintiff filed this complaint seeking to recover $552.63, the cost of
automotive repair and related expenses he incurred as a result of the October 19, 2009
incident. The filing fee was paid.
        {¶ 2} Defendant acknowledged that the roadway area where plaintiff’s property
damage incident occurred was located within the limits of a working construction project
under the control of ODOT contractor Kokosing Construction Company, Inc. (Kokosing).
Defendant explained that the construction project “dealt with grading, draining, planning
and paving with asphalt concrete to thirteen (13) structures on I-77 between county
milepost 1.89 and 8.46 or state mileposts 148.98 to 155.55 in Cuyahoga County.”
Defendant asserted that this particular construction project was under the control of
Kokosing and consequently, ODOT had no responsibility for any damage or mishap on
the roadway within the construction project limits. Defendant argued that Kokosing, by
contractual agreement, was responsible for maintaining the roadway within the
construction zone. Therefore, ODOT reasoned Kokosing 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. Furthermore,
defendant contended that plaintiff failed to introduce sufficient evidence to prove his
damage was proximately caused by conduct attributable to either ODOT or Kokosing or
that the damage claimed was the result of negligent maintenance. All construction work
performed within the project limits was to be performed in accordance with ODOT
requirements and specifications and subject to ODOT approval. Also, ODOT personnel
maintained an onsite inspection presence throughout the construction project limits.
      {¶ 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 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 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 Kokosing had any
knowledge “of the manhole cover on I-77" prior to plaintiff’s described damage
occurrence. Defendant stated that “records indicate that no calls or complaints were
received at the Cuyahoga County Garage regarding the manhole cover in question,”
which ODOT located between state mileposts 151.9 to 155.48 on Interstate 77.
Defendant’s records (copies submitted) show that prior property damage complaints
were received in reference to the general area where plaintiff’s damage event occurred.
However, these complaints involved construction debris damage and not manhole
covers.
        {¶ 6} Defendant submitted a copy of an e-mail from ODOT District 12
Construction Area Engineer, Jeffery A. Hebebrand, regarding his knowledge of
problems with manhole covers on Interstate 77 within the construction area. Hebebrand
referenced two prior claims involving motorists striking “manhole lids shifting from their
respective frames.” According to Hebebrand, ODOT subsequently directed Kokosing
“to weld the lids shut while under traffic” and the welding was completed by August
2009.     Hebebrand noted all manhole lids in the vicinity of plaintiff’s incident “were
welded closed.” Furthermore, in a second e-mail Hebebrand wrote that “[a]ll of the
manholes had asphalt transitions built-up around the frames per plan since traffic is
riding on the intermediate course and the manholes were installed at the final elevation
(top of surface course).” Hebebrand indicated that work performed by Kokosing was
done at the direction of ODOT “per plan.”
       {¶ 7} Defendant also supplied a copy of an e-mail from Kokosing Claims
Specialist, Pamela LeBlanc, concerning manhole cover maintenance on the Interstate
77 construction area.    LeBlanc noted that the manhole cover plaintiff’s automobile
struck along with other manhole covers in the area “are the resultant of ODOT’s
design.”
       {¶ 8} Plaintiff filed a response contending that he has offered evidence to prove
his property damage was caused by a defective condition designed by ODOT and
maintained by Kokosing. Plaintiff stated that the fact the manholes on Interstate 77
were “built up” pursuant to ODOT design should be sufficient to establish liability.
       {¶ 9} 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 vehicle was directly caused by
construction activity of ODOT’s contractor prior to October 19, 2009.            However,
evidence has not shown defendant’s contractor created a hazardous condition with the
manhole cover considering the work was performed in accordance with ODOT
specifications and design.     Also, evidence has shown that plaintiff was aware of
pavement conditions on Interstate 77 and was responsible for taking some driving
precautions based on road conditions. See Nicastro v. Ohio Dept. of Transp., Ct. of Cl.
No. 2007-09323-AD, 2008-Ohio-4190.
       {¶ 10} “If an injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in 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. 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.
      {¶ 11} 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 pubic 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. In the instant claim,
plaintiff has failed to prove that defendant or its agents maintained a known hazardous
roadway condition. Pinkney v. Dept. of Transp., Ct. of Cl. No. 2008-01707-AD, 2008-
Ohio-5166. 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.


                               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




ROBERT A. LATOURETTE

      Plaintiff

      v.

THE OHIO DEPARTMENT OF TRANSPORTATION
        Defendant

         Case No. 2009-08772-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:

Robert A. LaTourette                              Jolene M. Molitoris, Director
2082 East Fourth Street                           Department of Transportation
Apt. 305                                          1980 West Broad Street
Cleveland, Ohio 44115                             Columbus, Ohio 43223

RDK/laa
1/20
Filed 2/4/10
Sent to S.C. reporter 5/14/10
