[Cite as Cushion v. Ohio Dept. of Transp., 2010-Ohio-1948.]

                                      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




R. PAUL CUSHION, II

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-01107-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, R. Paul Cushion, II, states he was traveling “north on I-71 at the
480 east overpass” on August 28, 2008, at approximately 8:40 a.m., when “a gust of
wind pushed an un-anchored highway sign into my automobile’s side/front of my 1997
Toyota Corolla, breaking my side passenger window and damaging my auto and
mirror.”
        {¶ 2} Plaintiff asserts that the damage to his vehicle was proximately caused by
negligence on the part of defendant, Department of Transportation (“DOT”), in
maintaining an unanchored sign on a highway. Plaintiff seeks damages in the amount
of $1,200.00 for automotive repairs. The filing fee was submitted with the complaint.
        {¶ 3} Defendant states the roadway area where plaintiff’s incident occurred was
within the limits of a working construction project under the control of ODOT contractor,
Karvo Paving Company (“Karvo”). Defendant explained the construction project dealt
“with grading, draining, planing and pavement repair of I-480" between county mileposts
6.78 and 9.00, in Cuyahoga County.                 Defendant asserts this particular construction
project on I-480 was under control of Karvo and consequently DOT had no
responsibility for any damage or mishap on the roadway within the construction project
limits.    Defendant contended Karvo, by contractual agreement, was responsible for
maintaining the roadway within the construction zone. Therefore, DOT argues Karvo is
the proper party defendant in this action. Defendant implied 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 plaintiff failed to introduce sufficient
evidence to prove his damage was proximately caused by roadway conditions created
by DOT or its contractor. All construction work was to be performed in accordance with
DOT requirements and specifications and subject to DOT approval.
          {¶ 4} Defendant submitted a statement from Karvo’s Safety Risk Manager,
Cathleen Geddes. Geddes noted “[t]his damage claim was made for Thursday August
28, 2008. The signs used for this project are 48 x 48 Typical Interstate approved and
manufactured signs, some are even spring loaded. This accident was not caused by
any direct act of neglect or recklessness on the part of the contractor as described in
the claim. This accident was by the claimant’s own admission a direct cause of an act
of God, very strong windy weather. He even describes the difficulty the policeman was
having due to the strong winds when he attempted to reset the sign.
          {¶ 5} “Karvo Paving Company used the proper Traffic Control Procedures and
complied with all proper Traffic Control Guidelines set forth by the Ohio Department of
Transportation on this project. Therefore, Karvo Paving Company does not accept any
liability regarding this claim.”
          {¶ 6} Plaintiff filed a supplemental complaint after the defendant submitted the
investigation.    Plaintiff’s supplemental complaint will not be considered pursuant to
Civ.R. 15(A).
          {¶ 7} Plaintiff filed a response to defendant’s investigation report.    Plaintiff
presented a weather condition summary for the day of the occurrence, August 28, 2008,
which indicates wind speed maximums were 14 mph with maximum gusts of 22 mph.
Plaintiff asserts it was negligent on the part of defendant not to weigh down traffic signs
when wind patterns could be considered extreme. Plaintiff cites the Ohio Manual on
Uniform Traffic Control Devices for Streets and Highways (“MUTCD”), 7A-5(c)(1) which
in relevant part states: “Adequate warning, delineation, and channelization by means of
proper pavement marking, signing, and use of other devices which are effective under
varying conditions of light and weather should be provided to assure the motorist of
positive guidance in advance of and through the work area.”
      {¶ 8} 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.
      {¶ 9} 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 DOT
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 DOT to the traveling public both under normal traffic
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.
      {¶ 10} 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. 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. Defendant professed liability cannot be
established when requisite notice of the damage-causing conditions cannot be proven.
Generally, defendant is only liable for roadway conditions of which it has notice, but fails
to correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR 64, 507
N.E. 2d 1179.       However, proof of a dangerous condition is not necessary when
defendant’s own agents actively cause such condition, as it appears to be the situation
in the instant matter. 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.
       {¶ 11} This court in Wright v. Ohio Department of Natural Resources, Ct. of Cl.
No.    2003-11755-AD,     2004-Ohio-3581      and   Colbert   v.   Ohio    Department     of
Transportation, Ct. of Cl. No. 2005-08654-AD, 2006-Ohio-189, held had that if the
damage plaintiff sustained was attributable solely to an “Act of God” no negligence can
be found. However, in those cases wind speeds were 35 mph to 43 mph and 40 mph to
80 mph respectively. In the case at bar, normal precautions should have prevented a
construction sign from being blown in the traveled portion of the highway.
       {¶ 12} 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.
       {¶ 13} 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
condition are persuasive. Consequently, defendant is liable to plaintiff for the damages
claimed, $1,200.00, 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




R. PAUL CUSHION, II

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2009-01107-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 plaintiff in the amount of $1,225.00, which includes the filing fee. Court costs are
assessed against defendant.




                                DANIEL R. BORCHERT
                                Deputy Clerk

Entry cc:

R. Paul Cushion, II             Jolene M. Molitoris, Director
4322 Garwood Road               Department of Transportation
Cleveland, Ohio 44109           1980 West Broad Street
                                Columbus, Ohio 43223
DRB/laa
Filed 1/7/10
Sent to S.C. reporter 4/30/10
