[Cite as Van Dyke v. Ohio Dept. of Transp., 2011-Ohio-1118.]

                                      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




KURT J. VAN DYKE

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2010-09248-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Kurt J. Van Dyke, filed this action against defendant, Department
of Transportation (ODOT), contending his 2005 Jaguar S-Type was damaged as a
proximate cause of negligence on the part of ODOT personnel in conducting roadway
maintenance activity on State Route 605 in Franklin County on May 19, 2010. In his
complaint, plaintiff provided his own narrative description of the May 19, 2010 damage
event which he recalled occurred on State Route 65 South near “the intersection of
Route-605 and Bevelheimer” (Bevelhymer Road).                  Plaintiff pointed out as he
approached the intersection of State Route 605 and Bevelhymer Road he noticed traffic
ahead slowing and he decelerated his car to “approx 10 mph.” According to plaintiff, as
he passed the intersection he drove into the northbound lane of State Route 605 and
“[i]t was at this time I noted a road crew (ODOT personnel) dropping cones on foot with
a pickup truck keeping pace and holding the cones.” Plaintiff recorded that when he
ascertained the situation involving defendant’s road maintenance crew he decided to
pass the whole operation by driving in the northbound lane of State Route 605. Plaintiff
recalled, “I accelerated to approximately 35 MPH to pass the two cars and the road
crew that was on foot (and) [a]s I passed the road crew the worker that was setting the
cones down looked directly at me and threw one into the northbound lane which I was
passing in.”   Plaintiff maintained that he decided to drive over the cone that was
allegedly thrown into the northbound lane of State Route 605. Plaintiff advised he made
this decision in the interest of safety for himself, the ODOT crew, and other motorists on
the roadway at the time. Plaintiff noted that when he drove over the cone it became
lodged in the undercarriage of his car although he did observe “plastic body parts in the
distance” as he looked in his rearview mirror upon passing ODOT’s moving work
operation. Plaintiff did not stop his vehicle after passing the ODOT work crew but
continued traveling south on State Route 605. Plaintiff related the cone dislodged from
the undercarriage of his car when the car “hit the expansion joint of the bridge on Route-
605 that passes over Route-161” estimated to be approximately one mile from the site
where the Jaguar first struck the cone. Plaintiff stated “I later retrieved the cone for
evidence and to clean the roadway of its hazard.” Attached to the complaint were
multiple photographs of the traffic control cone. These photographs depict a cone that
appears almost entirely intact bearing some gouge marks.          Plaintiff contended all
damage to his automobile (photographs of damage submitted) was caused by the
described act of an ODOT employee.        In his complaint, plaintiff requested damage
recovery in the amount of $2,500.00, the statutory maximum amount allowed under
R.C. 2743.10. The filing fee was paid.
      {¶ 2} Defendant acknowledged ODOT personnel from the Westerville Garage
were positioning traffic control on State Route 605 in Franklin County on the morning of
May 19, 2010. Defendant explained the traffic control was in place “for the boring crew
out of (ODOT) Central Office to get core samples of the dirt around the bridges” on
State Route 605 at milepost 3.11. Defendant asserted the traffic control operation was
conducted in accordance with standard procedure, which included “posting signs of the
work ahead, setting out cones every 500' and using a flagger.” Conversely, plaintiff
contended he observed no advisory signs posted or any flagger directing traffic
preceding his described damage occurrence. Defendant specifically denied any ODOT
personnel breached any duty of care owed to plaintiff which resulted in the property
damage claimed. Defendant insisted all traffic control was in place on State Route 605
at the time of plaintiff’s damage occurrence.      Defendant suggested plaintiff’s own
negligent driving maneuver was the proximate cause of the damage claimed.
       {¶ 3} Defendant submitted two e-mails from ODOT Transportation Manager,
David S. Shackleford, Westerville Outpost, regarding his impression of the May 19,
2010 property damage event. Shackleford explained ODOT crews were setting up
traffic control on State Route 605 on that date and “had traffic stopped in both directions
while setting cones.” Shackleford noted, “[b]efore traffic was opened back up a driver
went through our work zone, at a high rate of speed, and hit a cone.” Shackleford
further noted that as the motorist hit the cone “he drove toward the (ODOT) employees,
causing them to run to the ditch to get out of the way.” According to Shackleford, all
ODOT crew members working traffic control on May 19, 2010 denied throwing any
traffic control cones at the approaching vehicle.          The ODOT traffic control crew
members were identified as Frank Griffith and Tom Erdy. Defendant did not provide
any statements from either Griffith or Erdy or the drilling crew from the ODOT central
office who were on site at the time of the incident forming the basis of this claim.
Apparently, Shackleford was not on the scene and did not witness the May 19, 2010
damage occurrence. In a second e-mail, Shackleford related, “[w]e did have signs set
(on State Route 605) to let traffic know that one lane was closed.”          According to
Shackleford, the placement of these advisory signs “is the first thing we do;” followed by
setting cones and then turning “strobes on so that we could be seen.” Shackleford
recalled he went to the job site on State Route 605 after being informed of the incident
and was told by the traffic control crew that flaggers with flagger paddles were on scene
to control traffic while cones were set to divide lanes.
       {¶ 4} Plaintiff filed a response disputing all contentions offered by defendant.
Initially, plaintiff reasserted he did not observe any posted advisory signs (“Work
Ahead”) on State Route 605 on the morning of May 19, 2010. Plaintiff acknowledged
he did observe the ODOT traffic control placing cones on the roadway and made the
decision to pass the traffic control operation by driving in the northbound lane of State
Route 605. Plaintiff related he “felt it was safe to pass them (the ODOT crew) at a
speed much less than the posted speed limit.” Additionally, plaintiff acknowledged he
did observe ODOT personnel in a truck and on foot at the time he made the decision to
pass the operation with an ODOT employee “right of center in the south-bound lane,
walking and dropping cones approximately on the center line.”         Plaintiff specifically
denied he forced any ODOT personnel to run into a ditch adjacent to the roadway when
he maneuvered around the traffic control operation.         Plaintiff insisted an ODOT
employee was “looking right at me and (pitched) a cone in front of my vehicle,” rather
than “running for cover.” Plaintiff asserted that if his car struck a cone that had been
dropped on the roadway center line, then he “would have had to veer towards the cone
and strike the pick-up truck to accomplish this task.” Plaintiff observed the damage to
his car was on the “front center” of the vehicle. The trier of fact finds the damage
depicted in the submitted photographs appears to cover the lower front of the car from
the extreme right front to the center. Plaintiff did not offer any explanation concerning
his decision to drive away after his vehicle struck the cone rather than stopping at the
scene immediately after impact.
      {¶ 5} 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. 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.
      {¶ 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} Additionally, defendant has a duty to exercise reasonable care in
conducting its roadside maintenance activities to protect personal property from the
hazards arising out of these activities. Rush v. Ohio Dept. of Transportation (1992), 91-
07526-AD.    When engaged in such activities, defendant’s personnel must operate
equipment in a safe manner.        State Farm Mutual Automobile Ins. Company v.
Department of Transportation (1998), 97-11011-AD.
        {¶ 8} 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. This 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. The court does not find plaintiff’s
description of the damage incident to be persuasive.        Furthermore, whether or not
advisory signs or flaggers were at the scene at the time of the incident is irrelevant
considering plaintiff acknowledged he perceived the traffic control operation in progress
at the time he made his decision to pass the operation.
        {¶ 9} 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.
        {¶ 10} “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
and plaintiff had full knowledge of the operation. Plaintiff failed to prove his 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.
        {¶ 11} It appears that the cause of the property damage was the negligent driving
of plaintiff. See Wieleba-Lehotzky v. Ohio Dept. of Transp., Dist. 7, Ct. of Cl. No. 2004-
03918-AD, 2004-Ohio-4129; Adams v. Ohio Dept. of Transp., Ct. of Cl. No. 2009-
08659-AD, 2010-Ohio-2035; Young v. Ohio Dept. of Transp., Ct. of Cl. No. 2010-01484-
AD, 2010-Ohio-4220.




                               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




KURT J. VAN DYKE

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

      Case No. 2010-09248-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:
Kurt J. Van Dyke               Jolene M. Molitoris, Director
1216 Ross Road                 Department of Transportation
Sunbury, Ohio 43074            1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
11/18
Filed 1/11/11
Sent to S.C. reporter 3/4/11
