[Cite as Wojnowski v. Ohio Dept. of Transp., Dist. 12, 2010-Ohio-2183.]

                                       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




VICKI WOJNOWSKI

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DIST. 12

       Defendant

        Case Nos. 2009-05889-AD
            2009-07423-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Vicki Wojnowski, filed this action against defendant, Department of
Transportation (ODOT), alleging that her 2008 Nissan Altima was damaged while
traveling through a construction zone on Interstate 271 in Cuyahoga County. Plaintiff
described the property damage incident noting that “[c]onstruction work on 271 S. has
damaged my vehicle from rocks coming up (from) the torn up highway, [d]amaging my
front hood, bumper (and) windshield.” Apparently, the particular roadway pavement
section of Interstate 271 where plaintiff was traveling had been milled in preparation for
repaving. Plaintiff recalled the damage to her vehicle occurred at various times during
May and June 2009. Plaintiff submitted a repair estimate dated June 19, 2009 for her
Nissan Altima with a total estimated repair cost of $1,045.18.                      Plaintiff filed this
complaint seeking to recover that amount asserting her property damage was
proximately caused by negligence on the part of defendant in maintaining hazardous
roadway conditions in a construction area. The filing fee was paid.
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          2009-07423-AD



      {¶ 2} Plaintiff filed a second complaint which was assigned Claim No. 2009-
07423-AD, concerning the same incident. The plaintiff also submitted another filing fee.
      {¶ 3} Defendant acknowledged that the area where the described incident
occurred was located within the limits of a construction project under the control of
ODOT contractor, Karvo Paving Company. Defendant explained the “project dealt with
grading, draining, planning, pavement repair and resurfacing with asphalt concrete” on
Interstate 271 in Cuyahoga County, between mileposts 31.55 to 35.85.              Defendant
asserted Karvo, by contractual agreement, was responsible for any roadway damage
occurrences or mishaps within the construction zone. Therefore, ODOT argued 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. All work by the contractor was to be performed in accordance with ODOT
mandated       specifications   and   requirements   and   subject    to   ODOT    approval.
Furthermore, ODOT personnel maintained an onsite presence performing work
inspections.
      {¶ 4} 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
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Case No. 2006-03532-AD                  -3-              MEMORANDUM DECISION



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.
      {¶ 5} 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
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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.
      {¶ 6} Alternatively, defendant argued that neither ODOT nor Karvo had any
knowledge of any stone debris on the roadway prior to plaintiff’s described damage
occurrence. Defendant pointed out plaintiff did not provide a specific location where her
stated vehicular damage occurred over the more than four mile distance covering the
construction project area.    Defendant advised ODOT records show no calls or
complaints were received at the ODOT Cuyahoga County Garage concerning a debris
condition on Interstate 271 South prior to plaintiff’s incident starting in May 2009. The
submitted ODOT records cover the time frame from November 1, 2008 to May 1, 2009.
Plaintiff related her damage events occurred at various times during the months of May
and June 2009. Defendant contended plaintiff failed to produce evidence establishing
that her property damage was attributable to any conduct on the part of either ODOT or
Karvo. Defendant asserted the evidence available points to the fact that the debris that
damaged plaintiff’s vehicle was displaced by an unidentified third party motorist and not
by either ODOT or Karvo.
      {¶ 7} Also, defendant submitted a letter from Karvo representative, Michael A.
Totaro, regarding work performed and safety measures taken during construction
operations. Totaro provided the following narrative:
      {¶ 8} “Karvo performs night operations only on this particular project and had no
Case No. 2006-03532-AD                     -5-                MEMORANDUM DECISION




Case No. 2006-03532-AD                     -5-                MEMORANDUM DECISION



active zones or workers present at the time of the incident. Karvo performed all its
operations per ODOT plans and specifications and used the proper methods and
means for its operations. Karvo used the appropriate Traffic Control Procedures and
complied with all proper Traffic Control Guidelines set forth by the OMUTCD (Ohio
Manual of Uniform Traffic Control Devices) and in accordance with Sections 614.03,
614.04 and 614.07 of the Ohio Dept of Transportation Construction Material &
Specifications Manual.
        {¶ 9} “All zones and roadways are driven and inspected by Karvo and ODOT
during all operations. Karvo Traffic Control Supervisor, in addition to ODOT personnel
travel the length of the project searching for any potential traffic hazards. If the Traffic
Control Supervisor or ODOT observes any issues within the zone or zones, Karvo
corrects the situation immediately and prior to dismantling and opening the roadway to
traffic.”
        {¶ 10} Apparently, neither Karvo nor ODOT discovered any problem with debris
left on the roadway after milling operations were completed.
        {¶ 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
Case Nos. 2009-05889-AD                    -6-                 MEMORANDUM DECISION
          2009-07423-AD



acted in a manner to render the highway free from 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. Plaintiff has failed to prove the
objects that damaged her car emanated from roadway milling operations conducted by
Karvo.
         {¶ 12} Evidence in the instant action tends to show plaintiff’s damage was caused
by acts of unidentified third parties, not ODOT or its agents. Defendant has denied
liability based on the particular premise it had no duty to control the conduct of a third
person except in cases where a special relationship exists between defendant and
either plaintiff or the person whose conducts needs to be controlled. Federal Steel &
Wire Corp. v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However,
defendant may still 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
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} “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 injury. It is sufficient that his act is likely to result
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Case No. 2006-03532-AD                   -7-               MEMORANDUM DECISION



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.
      {¶ 14} 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 her vehicle was directly caused by
construction activity of ODOT’s contractor at sometime prior to or during the months of
May and June 2009. Plaintiff has failed to offer sufficient proof to establish that her
property damage was caused by defendant or its agents breaching any duty of care in
Case Nos. 2009-05889-AD                 -8-              MEMORANDUM DECISION
          2009-07423-AD



regard to roadway construction.     Evidence available seems to point out that the
complete milling process was performed properly under ODOT specifications. Plaintiff
has failed to prove that 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.




                              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




VICKI WOJNOWSKI

      Plaintiff

      v.
Case No. 2006-03532-AD                  -9-               MEMORANDUM DECISION




Case No. 2006-03532-AD                  -9-               MEMORANDUM DECISION




OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

      Defendant

       Case Nos. 2009-05889-AD
          2009-07423-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION



       Since Claim Nos. 2009-05889-AD and 2009-07423-AD concern the same
incident, this determination will address both claims.      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.
Case Nos. 2009-05889-AD         - 10 -             MEMORANDUM DECISION
          2009-07423-AD




                                         ________________________________
                                         DANIEL R. BORCHERT
                                         Deputy Clerk

Entry cc:

Vicki Wojnowski                          Jolene M. Molitoris, Director
38045 Erie Road                          Department of Transportation
Willoughby, Ohio 44094                   1980 West Broad Street
                                         Columbus, Ohio 43222
DRB/laa
11/23
Filed 2/4/10
Sent to S.C. reporter 5/14/10
