[Cite as Serafine v. Ohio Dept. of Transp., 2010-Ohio-4031.]

                                       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




CLIFFORD SERAFINE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2009-09591-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Clifford Serafine, filed this action against defendant, Department
of Transportation (ODOT), alleging he suffered paint damage to his 2005 Ford F250XL
truck as a proximate cause of negligence on the part of ODOT personnel in conducting
a roadway painting operation on State Route 252 in Medina County. Plaintiff recalled
the paint damage incident occurred on November 7, 2009. Plaintiff further recalled his
truck was damaged with wet paint while he was traveling north on State Route 252 at
some point between State Route 303 and State Route 82. In his complaint, plaintiff
provided the following description of his damage event stating: “[t]he white lines painted
were wet with no marking or warning about paint - I saw (ODOT) paint crew on lunch
parked on side of road 11-7-09 SAT. around 12:30 in afternoon.” Plaintiff pointed out
the white paint that adhered to his truck, “is very thick (and) rough.” Plaintiff submitted
photographs depicting white paint damage to the right side of his truck from bumper to
bumper. Plaintiff requested damage recovery in the amount of $2,036.42, the total cost
of removing paint and restoring his vehicle. Plaintiff submitted a repair estimate dated
November 19, 2009 reflecting the damage amount claimed. The filing fee was paid.
       {¶ 2} Defendant acknowledged ODOT personnel were painting white edge lines
on State Route 252 in Medina County on November 7, 2009 from 7:30 a.m. to 2:30 p.m.
According to defendant’s submitted documentation, weather conditions on that date
were 58    and sunny. Defendant explained three trucks were involved in the painting
operation which is classified as “a moving work zone that comes under the authority of
the Manual of Traffic Control for Construction and Maintenance Operations (Manual.)”
Defendant insisted all traffic control requirements mandated by the Manual were
observed during the course of the edge line painting. Defendant pointed out the “traffic
control that was in effect for the paint operation in question included the lead paint truck,
the paint striper, and a follow truck” along with “Wet Paint with arrow” sign. Defendant
explained, “[t]he newly painted line behind the follow truck is ‘dry’ however the newly
painted line between the paint striper and the follow truck may still be ‘wet.’” Therefore,
defendant suggested plaintiff, while traveling on State Route 252, received the paint
damage to his truck when, “he passed the follow truck and ‘tracked through’ the newly
painted edge line by getting behind the line marking machine or paint striper.”
Defendant asserted plaintiff was aware of the ODOT painting operation and failed to
“heed the warning devices” in place. Defendant contended all Manual mandated traffic
control was observed during the course of the painting operation and all safety
precautions were in place to advise motorists of the painting activity. Defendant further
contended ODOT did not breach any duty of care owed to motorists such as plaintiff
when conducting the November 7, 2009 painting operation.
                                CONCLUSIONS OF LAW
       {¶ 3} 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.
       {¶ 4} Plaintiff has the burden of proof to show his property damage was the
direct result of the failure of defendant’s agents to exercise ordinary care in conducting
roadway painting operations. Brake v. Department of Transportation (2000), 99-12545-
AD. A failure to exercise ordinary care may be shown in situations where motorists do
not receive adequate or effective advisement of an ODOT painting activity.                See
Hosmer v. Ohio Department of Transportation, Ct. of Cl. No. 2002-08301-AD, 2003-
Ohio-1921. In the instant claim, plaintiff asserted he did not discover defendant was
conducting edge line painting until he drove past the paint crew pulled over to the berm
of State Route 252 on a lunch break. Under this scenario, the paint that had been
applied to the roadway should have been dry whenever vehicle contact was made.
      {¶ 5} Plaintiff has not shown, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to him or that his injury was proximately
caused by defendant’s negligence. Plaintiff has failed to show that his property damage
was connected to any conduct under the control of defendant, that defendant was
negligent in conducting the painting operation, or that there was any negligence on the
part of defendant in regard to providing proper notification.    Roe v. Ohio Dept. of
Transp., Ct. of Cl. No. 2008-09872-AD, 2009-Ohio-3579; Layfield v. Dept. of Transp.,
Ct. of Cl. No. 2008-10692-AD, 2009-Ohio-3776. Conversely, evidence directs the court
to conclude plaintiff’s own negligent driving was the cause of his property damage.
Therefore, this claim is denied. See Rolfes v. Ohio Dept. of Transportation, Ct. of Cl.
No. 2004-09941-AD, 2005-Ohio-840; Delamatter v. Ohio Dept. of Transp., Ct. of Cl. No.
2007-01355-AD, 2007-Ohio-6387.




                              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




CLIFFORD SERAFINE

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION
        Defendant

         Case No. 2009-09591-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:

Clifford Serafine                                 Jolene M. Molitoris, Director
804 Thornwood Blvd.                               Department of Transportation
Elyria, Ohio 44035                                1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
4/22
Filed 4/28/10
Sent to S.C. reporter 8/26/10
