[Cite as Leonard v. Ohio Dept. of Transp., 2012-Ohio-5279.]



                                                        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




DAWN M. LEONARD

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2012-04952-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, Dawn M. Leonard, filed this action against defendant, Ohio
Department of Transportation(“ODOT”), contending that her 2011 Toyota Rav 4 was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
construction sign on Interstate 75 at Exit 51 in Montgomery County. Plaintiff pointed out
she was traveling on Interstate 75 on February 24, 2012 at approximately 9:30 a.m.,
“when the exit 51 sign on Highway 75 blew in my path” causing $6,108.45 in damages
to her vehicle. Plaintiff requested damages in the amount of $500.00, her insurance
deductible.        The plaintiff submitted the $25.00 filing fee with her complaint.
Photographs depicting the body damage to the 2011 Toyota Rav 4 were submitted.
        {¶2}    Additionally, plaintiff submitted a Traffic Crash Report from the Dayton
Police Department dated February 24, 2012. The report in pertinent part states: “at the
W. Stewart St. exit, was struck by a construction sign that was blown into the lane of
traffic.” Under the section of the report entitled weather, the officer at the scene, John
Garrison, indicated that there were “severe crosswinds” at the time of the damage-
causing incident.
      {¶3}    Defendant acknowledged that the area where plaintiff’s described damage
event occurred was located within a construction zone maintained by ODOT contractor,
The Ruhlin Company, Inc. (“Ruhlin”). Defendant related that the construction project
dealt with “grading, draining, paving with asphalt concrete, widening, replacing
numerous structures, rehabilitating several structures, upgrading the traffic control and
lighting and performing other related work.”
      {¶4}    Defendant asserted that Ruhlin, by contractual agreement,               was
responsible for maintaining the roadway within the construction area. Therefore, ODOT
argued that Ruhlin is the proper party defendant in this action, despite the fact that all
construction work was to be performed in accordance with ODOT requirements,
specifications, and approval.     Defendant also pointed out that a worksite traffic
supervisor maintained an onsite presence. 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.
      {¶5}    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-2573,788 N.E. 2d 1088, ¶8 citing Menifee
v. Ohio Welding Products, Inc., 15 Ohio St. 3d 75, 77, 472 N.E. 2d 707 (1984). 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, 76-0368-AD (1977). 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., 145 Ohio St. 198,
61 N.E. 2d 198 (1945), 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, 49
Ohio App. 2d 335, 361 N.E. 2d 486 (10th Dist. 1976). However, defendant is not an
insurer of the safety of its highways. See Kniskern v. Township of Somerford, 112 Ohio
App. 3d 189, 678 N.E. 2d 273 (10th Dist. 1996); Rhodus v. Ohio Dept. of Transp., 67
Ohio App. 3d 723, 588 N.E. 2d 864 (10th Dist. 1990). The duty of ODOT to maintain the
road 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., 10th Dist. No. 00AP-119 (June 28, 2001).
       {¶7}    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, 34 Ohio App. 3d 247, 517 N.E. 2d 1388 (10th Dist. 1986).
Defendant is only liable for roadway conditions of which it has notice, but fails to
reasonably correct. Bussard v. Dept. of Transp., 31 Ohio Misc. 2d 1, 507 N.E. 2d 1179
(Ct. of Cl. 1986). Alternatively, defendant denied that neither ODOT nor Ruhlin had
notice of a problem with a sign at Exit 51. Defendant related that Ruhlin acknowledged
that other signs were blown down on the same day as plaintiff’s incident.
       {¶8}    Defendant pointed out that February 24, 2012 was an extremely windy
day. “According to Defendant’s investigation, max wind speed was documented at 34
mph at Wright-Patt AFB, OH (Exhibit C), and at 46 mph at the Dayton International
Airport (Exhibit D) on the date of incident, with max wind gust speeds documented at 47
mph and 55 mph respectively. If the force of the wind is what propelled the sign into
Plaintiff’s car, ODOT cannot be held accountable for a force majeure.”
       {¶9}    Defendant asserted that plaintiff has failed to offer sufficient evidence to
prove that her property damage was attributable to any conduct on either the part of
ODOT or Ruhlin. Defendant further asserted that plaintiff failed to prove her property
damage     was     caused    by    negligent    maintenance.        Furthermore,   defendant’s
“investigation reveals that neither ODOT nor The Ruhlin Company had notice of the
signs being blown into traffic until after plaintiff’s incident.”
       {¶10} 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
to the traveling public. Feichtner v. Ohio Dept. of Transp., 114 Ohio App. 3d 346, 683
N.E. 2d 112 (10th Dist. 1995). 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
both under normal traffic conditions and during highway construction projects. See e.g.
White v. Ohio Dept. of Transp., 56 Ohio St. 3d 39, 42, 564 N.E. 2d 462 (1950); Rhodus.
       {¶11} Ordinarily, in a claim involving roadway defects, plaintiff must prove that
either: 1) defendant had actual or constructive notice of the defective condition and
failed to respond in a reasonable time or responded in a negligent manner, or 2) that
defendant, in a general sense, maintains its highways negligently. Denis v. Department
of Transportation, 75-0287-AD (1976).         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, 106 Ohio St. 94, 138 N.E. 526 (1992), at paragraph one
of the syllabus; Sexton v. Ohio Department of Transportation, 94-13861 (1996).
Although defendant’s contractor created certain conditions by installing the construction
sign, plaintiff has the burden to prove defendant’s agents created a dangerous condition
when the signs were installed.
       {¶12} Evidence has shown that high velocity wind gusts upwards of 55 mph
were measured in the area of plaintiff’s February 24, 2012 incident. Plaintiff related that
her car was struck by a sign that “blew in my path.”          Plaintiff did not provide any
evidence to suggest the sign was in disrepair or improperly installed. It is well settled
Ohio law that if an “Act of God” is so unusual and overwhelming as to do damage by its
own power, without reference to and independently of any negligence by defendant,
there is no liability. Piqua v. Morris, 98 Ohio St. 42, 49, 120 N.E. 300 (1918). The term
“Act of God” in its legal significance, means any irresistible disaster, the result of natural
causes, such as earthquakes, violent storms, lightening and unprecedented floods.
Piqua, at 47-48. The court finds plaintiff’s damage could have been proximately caused
by a force of nature, high velocity wind gusts, as opposed to any negligent act or
omission on the part of defendant or its agents.
       {¶13} “If any injury is the natural and probably 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., 6 Ohio St. 3d 155, 160, 451 N.E. 2d 815 (1983), quoting Neff Lumber Co. v. First
National Bank of St. Clairsville, Admr., 122 Ohio St. 302, 309, 171 N.E. 327 (1930).
Plaintiff has failed to offer proof that her property damage was connected to any
conduct under the control of defendant, that defendant was negligent in maintaining the
construction area, or that there was any negligence on the part of defendant or its
agents. Taylor v. Transportation Dept., 97-10898-AD (1998); Weininger v. Department
of Transportation, 99-10909-AD (1999); Witherell v. Ohio Dept. of Transportation, 2000-
04758-AD (2000). 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




DAWN M. LEONARD

    Plaintiff

    v.

OHIO DEPARTMENT OF TRANSPORTATION

    Defendant
Case No. 2012-04952-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:

Dawn M. Leonard                                  Jerry Wray, Director
13070 Dechant Road                               Department of Transportation
Farmersville, Ohio 45325                         1980 West Broad Street
                                                 Columbus, Ohio 43223
DRB/laa
Filed 10/31/12
sent to S.C. Reporter 11/14/12
