[Cite as Lee v. Ohio Dept. of Transp., 2011-Ohio-3444.]

                                       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




JAMES LEE, et al.

       Plaintiffs

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-11404-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiffs, James Lee and Shelly Archer, filed this action against
defendant, Ohio Department of Transportation (ODOT), alleging that their vehicle was
damaged on August 26, 2010, as a proximate cause of negligence on the part of ODOT
in maintaining a hazardous condition in a roadway construction area on State Route
534 in Trumbull County. Specifically, plaintiffs claimed that their car “bottomed out”
while traveling over a bridge at a particular area where the roadway pavement had been
milled in preparation for repaving. According to plaintiffs, their 1999 Plymouth Voyager
“bottomed out” when the vehicle traveled across the transition area where the milled
roadway abutted existing pavement on both sides of the bridge. It was noted that the
air bags on the vehicle deployed and the right front wheel and axle broke when the car
“bottomed out.” Plaintiffs seek recovery of damages in the amount of $2,500.00, the
complete stated cost of automotive repair, work loss and towing and car rental expense.
Plaintiffs submitted documentation showing their car was towed on August 24, 2010.
Plaintiff also submitted receipts dated August 27, 2010, estimating the total repair cost
for the vehicle at $1,200.00, and documenting rental car expense in the amount of
$567.50. Payment of the filing fee was waived.
       {¶ 2} Plaintiffs provided the following narrative description of their recollection of
the damage incident:
       {¶ 3} “[We were] going South on Rt 534 from Rt 87 past Parks West going
towards Rt 88. We were going 45 mph. We came to a bridge that was not done. We
slowed down but didn’t know that it was deep. We went down the first part of the
bridge. We came up the other side it was so deep we [nose] dived into the road setting
off both airbags. We came to a complete stop causing us to come off our seats.”
       {¶ 4} Defendant acknowledged that the area where plaintiff’s damage event
occurred was located within the limits of a construction project under the control of
ODOT contractor, Shelly and Sands, Inc. (Shelly).           Defendant explained that the
particular project dealt with “resurfacing with asphalt concrete on asphalt concrete base
and other related works as specified in the plans for SR 534 and SR 87 in Trumbull
County.”
       {¶ 5}   Defendant asserted that Shelly, by contractual agreement, was
responsible for any 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 mandated specifications, requirements, and
subject to ODOT approval.
       {¶ 6} 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.
       {¶ 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; Rhodus, supra.
      {¶ 8} 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} Defendant contended that plaintiffs failed to produce evidence establishing
their property damage was attributable to conduct on either the part of ODOT or Shelly.
Defendant advised that Shelly provided photographs (copies submitted) depicting the
bridge site. These photographs show an area where existing pavement on SR 534 has
been totally removed creating an uneven edge line at either end of the bridge. The
edge lines appear to have been ramped with asphalt grindings. The ramped transition
shown appears to the trier of fact to provide reasonably safe access over the bridge for
motorists.
      {¶ 10} 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.
      {¶ 11} Plaintiffs, in the instant claim, have alleged that the damage to their
vehicle was directly caused by construction activity of ODOT’s contractor prior to August
26, 2010. In the instant claim, plaintiffs have failed to introduce sufficient evidence to
prove that defendant or its agents maintained a known hazardous roadway condition.
See Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-AD, 2008-Ohio-4190.
Evidence has shown that the repavement project complied with ODOT specifications.
Plaintiffs have not provided evidence to prove that the roadway area was particularly
defective or hazardous to motorists. Reed v. Ohio Dept. of Transp., Dist. 4, Ct. of Cl.
No. 2004-08359-AD, 2005-Ohio-615.          Plaintiffs have failed to provide sufficient
evidence to prove that defendant was negligent in failing to redesign or reconstruct the
roadway repavement procedure considering plaintiffs’ incident appears to be the sole
incident at this area. See Koon v. Hoskins (Nov. 2, 1993), Franklin App. No. 93AP-642;
also, Cherok v. Dept. of Transp., Dist. 4, Ct. of Cl. No. 2006-01050-AD, 2006-Ohio-
7168. The trier of fact finds that the transition over the bridge created by Shelly that is
depicted in the submitted photographs, while not ideal, does not appear to be
particularly hazardous or unsafe.
      {¶ 12} “If an 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. 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.
      {¶ 13} Evidence available tends to point out that the roadway was maintained
properly under ODOT specifications. The photographic evidence submitted establishes
that the transition was ramped properly and visible to the traveling public. Plaintiffs
failed to prove their 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.
      {¶ 14} Plaintiffs have 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. Thus, it appears that the cause of the property damage claimed was the
negligent driving of plaintiff, James Lee.    See Wieleba-Lehotzky v. Ohio Dept. of
Transp., Dist. 7, Ct. of Cl. No. 2004-03918-AD, 2004-Ohio-4129.               Consequently,
plaintiffs’ 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




JAMES LEE, et al.

       Plaintiffs

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

       Case No. 2010-11404-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:
James Lee                       Jerry Wray, Director
Shellie Archer                  Department of Transportation
17483 Kinsman Road              1980 West Broad Street
Middlefield, Ohio 44062         Columbus, Ohio 43223
SJM/laa
3/17
Filed 3/31/11
Sent to S.C. reporter 6/30/11
