[Cite as Davies v. Dept. of Transp., Dist. 2, 2010-Ohio-4033.]

                                        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




THOMAS R. DAVIES

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION, DISTRICT 2

        Defendant

        Case No. 2009-09744-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Thomas R. Davies, filed this action against defendant,
Department of Transportation (ODOT), asserting that his 2008 Jeep Commander 4 X 4
was damaged as a proximate cause of negligence on the part of ODOT in maintaining a
construction zone on Interstate 475 in Lucas County.                   In his complaint, plaintiff
described the damage incident noting, “I was driving east on I 475 when going under
the Douglas Road overpass when my 2008 (Jeep Commander) got covered with
concrete splatter.” Apparently, an ODOT contractor was pouring concrete on the bridge
spanning Interstate 475 and concrete slurry fell from the bridge deck area onto plaintiff’s
vehicle.     Plaintiff recalled the described damage event occurred on September 15,
2009, at approximately 5:30 p.m.                 Plaintiff further recalled he contacted ODOT on
September 18, 2009 to report the concrete splatter incident and was referred to ODOT
contractor Posen Construction, Inc. (Posen). Plaintiff related that after calling Posen
representatives on multiple occasions to complain about the damage to his vehicle, an
agreement was reached to “get someone out to clean” the vehicle. Cleaning company
personnel ultimately arrived at plaintiff’s location on October 6, 2009 to attempt to
remove the concrete splatter from the Jeep. Plaintiff advised he was not satisfied with
this cleaning attempt and consequently a second attempt was made to clean the Jeep
of concrete splatter on November 4, 2009. Plaintiff explained that after the second
cleaning the stains on the vehicle’s body “looked good,” but the left and right mirrors
and windshield molding “still has stains.” Plaintiff submitted photographs depicting the
concrete slurry damage on his Jeep. The photographs show multiple flecks of concrete
adhered to portions of the entire body of the vehicle including the side mirrors and
windshield molding. The trier of fact is unable to determine when the photographs were
taken; specifically, either before or after or in between the two cleaning attempts.
Plaintiff contended the mirrors and windshield molding on his Jeep remain damaged
after two cleanings and these parts need replaced.          Therefore, plaintiff filed this
complaint seeking to recover $1,725.08, the complete cost of replacement parts. The
filing fee was paid.
       {¶ 2} Defendant acknowledged plaintiff’s damage incident occurred within the
limits of a working construction project where ODOT contractor Posen was “improving
three structures on I-475 and SR 120 in the City of Toledo in Lucas County.” Defendant
located plaintiff’s damage occurrence at county milepost 14.53 on Interstate 475 which
is within the construction project limits. Defendant explained that the construction area
of Interstate 475 was under the control of Posen and consequently ODOT had no
responsibility for any damage or mishaps on the roadway within the construction project
limits. Defendant asserted that Posen, by contractual agreement, was responsible for
maintaining the roadway in the construction area, although all work performed was
subject to ODOT requirements and specifications. 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
roadway section.       Defendant has the duty to maintain its highway 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
contentions 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. The
evidence presented establishes that the concrete slurry that damaged plaintiff’s vehicle
emanated from a bridge where ODOT’s agents were working.
       {¶ 3} 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 an
unreasonable risk of harm is the precise duty owed by ODOT to the traveling public
under both 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,
67 Ohio App. 3d at 729, 588 N.E. 2d 864; Feichtner, at 354.
       {¶ 4} Defendant stated Posen “has made an effort to resolve this matter but
plaintiff has not been satisfied with the results.”       Defendant maintained Posen had
plaintiff’s vehicle cleaned on two occasions and offered to have the vehicle cleaned for
a third time, but plaintiff refused the offer.
       {¶ 5} Defendant submitted a letter from Posen Claims Coordinator, Michael
Thomas, referencing his knowledge about the damage to plaintiff’s Jeep and
subsequent remedial action taken. Thomas noted Posen sent a cleaning company to
plaintiff’s location on two occasions and the vehicle was cleaned and polished. Thomas
related, “[a] few days after polishing the entire car I ask Mr. Davies how his car looks
and he responded that it looks good.” According to Thomas, plaintiff subsequently
telephoned and requested Posen pay for new mirrors and moldings on the Jeep.
Thomas advised that once plaintiff initiated this action, he telephoned plaintiff and, “I
asked Mr. Davies if I could take a look at his car, and he denied.” In recalling the
conversation with plaintiff, Thomas indicated he “offered to send my cleaning company
back out for a third time,” but plaintiff declined the offer.
       {¶ 6} Plaintiff filed a response insisting the mirrors and moldings on his Jeep
were still concrete stained after two cleanings and a polishing. Plaintiff acknowledged
Michael Thomas called him on January 12, 2009 and requested he be permitted to
examine the Jeep. Plaintiff related that during this conversation Thomas offered a cash
settlement. However, according to plaintiff, the settlement never proceeded beyond an
offer. Plaintiff reported he called Thomas on January 15, 2009 and Thomas “said he
wanted to clean it (2008 Jeep Commander) again.” Plaintiff indicated he refused the
offer to have his vehicle cleaned a third time and wanted a cash settlement for the total
cost of replacement parts.     Plaintiff did not provide the court with any evidence to
evaluate the current condition of his 2008 Jeep Commander.
       {¶ 7} 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.              Additionally, the assessment of
damages is a matter within the province of the trier of fact. Litchfield v. Morris (1985),
25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462. As trier of fact, this court has the
power to award reasonable damages based on evidence presented. Sims v. Southern
Ohio Correctional Facility (1988), 61 Ohio Misc. 2d 239, 577 N.E. 2d 160. The court
finds in the instant claim that plaintiff has failed to produce sufficient evidence to satisfy
the trier of fact that the damage to his vehicle has not been remedied by the cleaning
and polishing efforts or that the mirrors and moldings on the vehicle need to be
replaced. Consequently, plaintiff’s 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




THOMAS R. DAVIES

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION, DISTRICT 2

      Defendant

      Case No. 2009-09744-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:

Thomas R. Davies                                Jolene M. Molitoris, Director
5226 Pickle Road                Department of Transportation
Oregon, Ohio 43618              1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
3/31
Filed 4/23/10
Sent to S.C. reporter 8/26/10
