[Cite as Wunderle v. Ohio Dept. of Transp., 2016-Ohio-1108.]



BRIAN WUNDERLE                                        Case No. 2015-00851-AD

       Plaintiff                                      Clerk Mark H. Reed

       v.
                                                      MEMORANDUM DECISION
OHIO DEPARTMENT OF
TRANSPORTATION

       Defendant



        {¶1} Plaintiff Brian Wunderle (hereinafter “plaintiff”) filed this claim on October 1,
2015 to recover damages which occurred when his 2012 Honda Civic was struck by a
piece of debris on September 11, 2015 while traveling under the Hudson Road bridge
on Interstate 71 in Franklin County, Ohio. This road is a public road maintained by the
Ohio Department of Transportation (hereinafter “ODOT"). On this date, this section of
the interstate was under construction by Complete General Construction Company.
Plaintiff’s vehicle sustained damages in the amount of $2,949.51. Plaintiff maintains a
collision insurance deductible of $250.00.
        {¶2} The facts of the case are as follows: The plaintiff’s vehicle was damaged
when a piece of debris from a construction site on the Hudson Road overpass fell and
struck and shattered the rear window of his vehicle. This overpass was part of the
construction site of the Complete General Construction Company, who was working on
a road improvement project pursuant to contract with ODOT.                 Both plaintiff and a
witness saw the debris fall from the work site hitting plaintiff’s vehicle. In addition to the
broken window, the window frame was damaged as well.
        {¶3} In this action, ODOT stands in the position of an employer, while the
Complete General Construction Company may be regarded as an independent
contractor. The general rule of law is that an employer is not liable for the negligent
acts of an independent contractor.             Pusey v. Bator (2002), 94 Ohio St.3d 275, 762
Case No. 2015-00851-AD                        -2-               MEMORANDUM DECISION




N.E.2d 968.      However, “[o]ne who employs an independent contractor to do work
involving a special danger to others which the employer knows or has reason to know to
be inherent in or normal to the work, or which he contemplates or has reason to
contemplate when making the contract, is subject to liability for physical harm caused to
such others by the contractor's failure to take reasonable precautions against such
danger.”      Bohme, Inc. v. Sprint Internatl. Communications Corp. (1996), 115 Ohio
App.3d 723, 736, 686 N.E.2d 300, citing Restatement of the Law 2d, Torts (1965),
Section 427.     See, also, Richman Bros. v. Miller (1936), 131 Ohio St. 424, 6 O.O. 119,
3 N.E.2d 360.     In Pusey, supra, the Supreme Court of Ohio explained that when work
is inherently dangerous, “the employer hiring the independent contractor has a duty to
see that the work is done with reasonable care and cannot, by hiring an independent
contractor, insulate himself or herself from liability for injuries resulting to others from the
negligence of the independent contractor or its employees.” Id. at 279-280, 762 N.E.2d
968.    In other words, when a certain task is inherently dangerous, an employer
becomes liable for the negligence of a subcontractor in “failing to take precautions
against the danger involved in the work itself, which the employer should contemplate at
the time of his contract.”      Restatement of the Law 2d, Torts (1965), Section 427,
Comment d.
       {¶4} In determining whether or not ODOT is negligent in this case, the Court
must determine whether road construction on an interstate highway is an inherently or
intrinsically dangerous activity.    “Ohio courts have generally treated the issue of
whether employment is inherently dangerous as a question of law to be determined by
the Court.”    Tackett v. Columbia Energy Group Serv. Corp. (Nov. 20, 2001), Franklin
App. No. 01AP-89, 2001 WL 1463383.            See, e.g., Bond v. Howard Corp. (1995), 72
Ohio St.3d 332, 650 N.E.2d 416; Pusey, supra, 94 Ohio St.3d at 275, 762 N.E.2d 968.
Case No. 2015-00851-AD                      -3-              MEMORANDUM DECISION




       {¶5} The Supreme Court defined work as being inherently dangerous when it
“creates a peculiar risk of harm to others unless special precautions are taken.” Id. at
279, 762 N.E.2d 968. “[I]t is not necessary that the work be such that it cannot be done
without a risk of harm to others, or even that it be such that it involves a high risk of
such harm.     It is sufficient that the work involves a risk, recognizable in advance, of
physical harm to others, which is inherent in the work itself.” Id. at 280, 762 N.E.2d 968,
citing Restatement of the Law 2d, Torts (1965), Section 427, Comment b.
       {¶6} Applying this standard to the facts of this case, the Court concludes that
roadway construction on an overpass over an interstate highway is an inherently
dangerous activity and that, as a matter of law, such activity does create a peculiar risk
of harm to others. Additionally, the fact that debris was falling from the overpass onto
passing motorists underneath is sufficient to show that at least in this instance, the
contractor failed to take reasonable precautions against such danger.            Thus the
defendant, Ohio Department of Transportation, may be held liable for plaintiff’s losses in
this case.
       {¶7} Plaintiff’s claimed repair costs were $2,949.51 and his insurance deductible
is $250.00. Ohio law requires recoveries against the state to be reduced by any
available insurance. Plaintiff’s recovery is therefore limited to $250.00 plus the $25.00
filing fee, which may be reimbursed as compensable damages pursuant to the holding
in Bailey v. Ohio Department of Rehabilitation and Correction, 62 Ohio Misc 2d 19, 587
N.E. 2d 990 (Ct. of Cl. 1990).
Case No. 2015-00851-AD                       -4-              MEMORANDUM DECISION




BRIAN WUNDERLE                                Case No. 2015-00851-AD

         Plaintiff                            Clerk Mark H. Reed

         v.
                                              ENTRY OF ADMINISTRATIVE
OHIO DEPARTMENT OF                            DETERMINATION
TRANSPORTATION

         Defendant

         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 the plaintiff in the amount of $275.00, which includes the filing fee. Court costs are
assessed against defendant.




                                               MARK H. REED
                                               Clerk

Entry cc:
Brian Wunderle                                 Jerry Wray, Director
67 Warren Street                               Ohio Department Of Transportation
Columbus, Ohio 43215                           1980 West Broad Street
                                               Mail Stop 1500
                                               Columbus, Ohio 43223



Filed 2/2/16
Sent to S.C. Reporter 3/18/16
