[Cite as Morris v. Ohio Dept.. of Transp., 2010-Ohio-3147.]

                                       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




MICHAEL P. MORRIS

        Plaintiff

        v.

OHIO DIVISION OF TRANSPORTATION

        Defendant

        Case No. 2009-08501-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Michael P. Morris, filed this action contending his company car, a
2010 Chevrolet Malibu was damaged on September 25, 2009 as a proximate cause of
negligence on the part of defendant, Department of Transportation (ODOT), in
maintaining State Route 608 in an area where roadway construction activity was being
conducted. Specifically, plaintiff explained the vehicle was damaged when the front
facia shield on the car struck a transition area on the roadway where a section of
pavement that had been milled met an area where existing pavement remained intact.
Plaintiff described this roadway transition area as “a very pronounced lip” and observed
that when the front end of the car contacted with the transition the impact pushed the
facia shield into the vehicle’s air conditioning condenser damaging both parts. Plaintiff
located the damage-causing incident at “southbound on Route 608 [a]t the junction of
Lake (County) and Geauga (County) just before Radcliff Road.” Plaintiff recalled there
were no construction workers present at the time of the property damage event
(approximately 10:00 p.m. on Friday, September 25, 2009) and he was “driving below
the posted speed limit due to the darkness, the construction, and the deer in the area.”
Plaintiff filed this complaint seeking to recover damages in the amount of $816.85, the
cost of automotive repair expense he incurred as a result of the described incident.
Plaintiff advised the 2010 Chevrolet Malibu is owned by his employer, Tim Lally
Chevrolet, Inc., but he is responsible for property damage to the vehicle “up to
$1,000.00.” The $25.00 filing fee was paid.
       {¶ 2} Defendant acknowledged that the stated area where plaintiff’s described
damage event occurred was located within the limits of a construction project under the
control of ODOT contractor, Kokosing Construction Company, Inc. (Kokosing).
Defendant explained the particular project “dealt with grading, draining, planning and
resurfacing with asphalt concrete on SR 608 in Lake County.”             From plaintiff’s
description of the damage event, defendant located the incident “close to milepost 0.0
which is the beginning of this project in Lake County.” Defendant asserted Kokosing, by
contractual agreement, was responsible for any roadway damage, occurrences, or
mishaps within the construction zone. Therefore, ODOT argued that Kokosing 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, defendant maintained an onsite personnel presence in the construction
project area.
       {¶ 3} 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.
      {¶ 4} 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
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.
      {¶ 5} Alternatively, defendant argued that neither ODOT nor Kokosing had any
knowledge “of any problems with uneven pavement on this project” prior to plaintiff’s
damage occurrence. Defendant related ODOT “records (copies submitted) indicate that
no calls or complaints were received at the Lake County Garage for SR 608 regarding
uneven pavement prior to Plaintiff Morris’ incident.” Defendant advised the specific
portion of State Route 608 has an average daily traffic of over 3000, yet no complaints
were received concerning uneven pavement problems before September 25, 2009.
Defendant did not provide any evidence to establish when the pavement on State Route
608 was initially milled in preparation for repaving.    Evidence submitted shows the
contract between ODOT and Kokosing was finalized on August 10, 2009. Therefore,
the trier of fact shall infer State Route 608 was milled at sometime between August 10,
2009 and September 25, 2009.        Defendant contended plaintiff failed to produce
evidence establishing the damage to the 2010 Chevrolet Malibu was attributable to
conduct on either the part of ODOT or Kokosing.
      {¶ 6} Defendant submitted a copy of an e-mail from Kokosing Claims
Specialists, Pamela LeBlanc, in response to plaintiff’s allegations of a hazardous
roadway condition created on State Route 608 from the milled pavement. LeBlanc
noted that she spoke with Kokosing Project Superintendent, Lee Schloss who informed
her “Bump” signage was installed at the area of State Route 608 where the milled
roadway transitioned to existing pavement. LeBlanc also noted that Schloss reported a
butt joint of 1 1/4" was placed at the transition site to provide for safe travel and ODOT
did not designate any maintenance of traffic for the specific roadway area. LeBlanc
insisted “[s]afe travel through this work zone was provided and appropriate signage was
in place.” Furthermore, in reference to the purported incident site defendant submitted
a copy of an e-mail from ODOT Project Engineer, Neal Moscato, who advised “[t]he butt
joint in that area was 1 and ½ inches deep.”           Moscato also provided with his
correspondence a “Standard Construction Drawing B P 3.1" (copy submitted) used as a
standard for installation of butt joints on milled roadway surfaces to merge milled
pavement with existing pavement.       Defendant maintained the ODOT specifications
depicted in the drawing were utilized by Kokosing upon milling State Route 608.
Moscato expressed the opinion that he could not comprehend any vehicle “of legal
clearance or roadworthiness getting damaged by that exposure” at the roadway
transition site where the butt joint was installed. Defendant did not provide evidence to
show the specific date the butt joint was installed at milepost 0.00 on State Route 608 in
Lake County.
      {¶ 7} Plaintiff filed a response asserting that the butt joint referenced in the
Moscato and LeBlanc e-mails was not installed until after his September 25, 2009
property damage event. Plaintiff related “[s]everal days after the incident (but before I
filed any type of claim) the bump in the road was amended with an asphalt filler to
reduce the amount of the lip.”       Plaintiff questioned “[i]f the butt joint was within
guidelines, then why was the asphalt added?”         Plaintiff again contended the 2010
Chevrolet Malibu was damaged as a proximate cause of negligence in failing to provide
for safe transition travel on the roadway from a milled area to existing intact pavement.
      {¶ 8} 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 the vehicle was directly caused by
construction activity of ODOT’s contractor prior to September 25, 2009. No evidence
was provided to show ODOT inspected the roadway area after milling operations were
completed. No evidence was submitted to establish when the roadway surface near
milepost 0.00 on State Route 608 was initially milled prior to September 25, 2009 or that
if a butt joint of any height was installed at the time milling was completed.
       {¶ 9} “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.
       {¶ 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
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
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 provided sufficient evidence to prove a known hazardous condition existed on the
roadway after ODOT specified operations were completed and neither ODOT nor its
agents timely corrected the condition. See Mullins v. Ohio Dept. of Transp., Dist. 8, Ct.
of Cl. No. 2008-11371-AD, 2009-Ohio-5110.
      {¶ 11} 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. The 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. In the instant action, the trier of fact
finds that the statements of plaintiff concerning the origin of the damage-causing
condition are persuasive. Consequently, defendant is liable to plaintiff for the damages
claimed, $816.85, plus the $25.00 filing fee which may be reimbursed as compensable
costs pursuant to R.C. 2335.19. See Bailey v. Ohio Department of Rehabilitation and
Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.


                               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




MICHAEL P. MORRIS

      Plaintiff

      v.

OHIO DIVISION OF TRANSPORTATION

      Defendant

      Case No. 2009-08501-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 plaintiff in the amount of $841.85, which includes the filing fee. Court costs are
assessed against defendant.




                                       DANIEL R. BORCHERT
                                       Deputy Clerk

Entry cc:

Michael P. Morris                      Jolene M. Molitoris, Director
9905 Tudor Pl.                         Department of Transportation
Chardon, Ohio 44024                    1980 West Broad Street
                                       Columbus, Ohio 43223
RDK/laa
2/25
Filed 3/5/10
Sent to S.C. reporter 7/1/10
