[Cite as Parker v. Ohio Dept. of Transp., 2010-Ohio-1725.]

                                       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




CHERYL PARKER

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2009-08381-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Cheryl Parker, filed this action against defendant, Department of
Transportation (ODOT), contending her 2005 Toyota                       Rav 4 was damaged as a
proximate cause of negligence on the part of ODOT in failing to properly mark a
concrete divider on US Route 20 to advise motorists of its presence. Plaintiff recalled
her vehicle was damaged at approximately 7:30 p.m. on October 7, 2009 as a result of
striking the concrete divider located on US Route 20 approximately 100 feet west on
Fern Drive in Painesville Township in Lake County. Plaintiff related the concrete divider
“is in the center of the road and is divided by railroad tracks” that span both the east and
west roadway lanes of US Route 20. Plaintiff further related “[t]he ends of the (divider
are) painted (yellow) but the ends that are (adjacent) to the tracks are not marked and
that is where (I) drove into the (divider).”                 Plaintiff contended she drove over the
unpainted portion of the concrete divider due to the fact it was unmarked and she
apparently could not discern the divider during the early evening of October 7, 2009.
Plaintiff expressed the opinion “that if these (dividers) were painted completely around
(and/or) marked with reflective poles or guard rails they would be very visible and
possibly prevent the next person to not do what I did.” One tire on the 2005 Toyota Rav
4 was damaged when it struck the concrete divider while plaintiff drove from west to
east on US Route 20. In her complaint, plaintiff requested damages in the amount of
$265.22, representing the cost of a replacement tire, plus related repair expenses. The
filing fee was paid.
       {¶ 2} Plaintiff submitted photographs depicting the particular section of the
concrete divider on US Route 20 her vehicle struck. The photographs were taken from
various distances and at various times.     The photographs show an angled slab of
unpainted concrete perhaps eight inches in height positioned in the center of the
roadway with the angled section facing the railroad tracks.       An orange center line
delineates the traveled portion of the roadway from the concrete divider.            The
photographs were taken from a vehicle showing the driver’s perspective of the roadway,
railroad tracks, and concrete divider.     The trier of fact finds after reviewing the
photographs submitted that the concrete divider and painted center line road
demarcation are clearly visible.
       {¶ 3} Defendant denied liability in this matter arguing plaintiff did not produce
any evidence to prove her property damage was caused by any negligent act or
omission on the part of ODOT.       Defendant suggested the sole cause of plaintiff’s
damage was her own negligent driving in crossing a marked double yellow line on the
roadway before striking the concrete divider located on the roadway median section not
intended for travel. Defendant explained the decision was made to install the concrete
divider to prevent motorists “from stopping on the railroad tracks to turn into businesses
on US 20.” Defendant observed ODOT records indicate “[t]his section of roadway has
an average daily traffic count between 11,120 and 15,890 vehicles.”           Essentially,
defendant maintained the concrete divider was placed as a safety measure to keep
traffic from stopping on the railroad tracks spanning US Route 20 to enter businesses
located adjacent to the roadway.     Defendant contended plaintiff failed to prove the
installation and maintenance of the concrete divider constituted actionable negligence
on the part of ODOT.
       {¶ 4} Defendant submitted photographs depicting the roadway, concrete divider,
railroad tracks and adjacent area. The photographs show the concrete divider is clearly
visible, is placed on the roadway median beyond the clearly marked orange painted
roadway demarcation, and therefore not part of the roadway intended for travel.
      {¶ 5} Plaintiff filed a response acknowledging she drove across the yellow line
on US Route 20 “maybe a foot (and) hit the side end knowing the turn lane was at the
end of the islands (concrete dividers).” Plaintiff again contended her property damage
was proximately caused by negligence on the part of defendant in not providing
additional markings on the concrete dividers to notify motorists of the roadway condition
maintained by ODOT.
      {¶ 6} 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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that she 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.
      {¶ 7} 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.
      {¶ 8} Defendant may bear liability if it can be established if some act or
omission on the part of ODOT or its agents was the proximate cause of plaintiff’s injury.
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.
      {¶ 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 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. Evidence available tends to point out the roadway was maintained properly
under ODOT specifications.      Plaintiff failed to prove her 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; Vanderson
v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-09961-AD, 2006-Ohio-7163; Shiffler v.
Ohio Dept. of Transp., Ct. of Cl. No. 2007-07183-AD, 2008-Ohio-1600. In fact, the sole
cause of plaintiff’s damage was her own negligent driving. See Wieleba-Lehotzky v.
Ohio Dept. of Transp., Dist. 7, Ct. of Cl. No. 2004-03918-AD, 2004-Ohio-4129. Plaintiff
has not proven defendant maintained a hidden roadway defect. See Sweney v. Ohio
Dept. of Transp., Dist. 8, Ct. of Cl. No. 2009-03649-AD, 2009-Ohio-6294.




                               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




CHERYL PARKER

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

      Case No. 2009-08381-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:

Cheryl Parker                                     Jolene M. Molitoris, Director
108 S. Doan Avenue                                Department of Transportation
Painesville, Ohio 44077                           1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
12/7
Filed 12/23/09
Sent to S.C. reporter 4/16/10
