[Cite as Bamberger v. Ohio Dept. of Transp., 2011-Ohio-6955.]




                                      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
DIETER J. BAMBERGER

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2011-06897-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, Dieter Bamberger, states he was traveling “west bound on Rt. 2”
when he drove through a construction zone and hit a sign that “was blown over by the
wind.” Plaintiff asserts the construction zone “was only one lane and I had no way to
swerve or avoid the hazard.” Plaintiff relates he suffered two flat tires and lost 2.5 hours
from work to have the repairs completed. According to plaintiff, the incident occurred on
April 20, 2011, at approximately 3:45 a.m. Plaintiff asserts that the damage to his
vehicle was proximately caused by negligence on the part of defendant, Department of
Transportation (DOT), in maintaining an improperly anchored sign on a highway.
Plaintiff seeks damages in the amount of $330.84 for automotive repairs and lost
wages. The filing fee was paid.
        {¶2}    Defendant denied liability in this matter contending it did not have any
knowledge concerning debris on SR 2 prior to plaintiff’s property-damage incident.
Defendant determined the roadway area where plaintiff's incident occurred was within
the limits of a working construction project under the control of DOT contractor,
Kokosing Construction Company (Kokosing).                   Defendant explained the construction
project dealt “with grading, draining, planning, pavement repair, pavement sawing,
resurfacing with asphalt concrete and structure repairs in Lake County on SR 2 between
mileposts 14.38 and 16.56.” Defendant contended Kokosing, by contractual agreement,
was responsible for maintaining the roadway within the construction zone and
consequently DOT had no responsibility for any damage or mishap on the roadway
within the construction project limits. Therefore, DOT argues 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.
Defendant noted the contractor did not report evidence of debris or other problems at
the site on April 20, 2011.
       {¶3}   In addition, defendant notes plaintiff did not report the incident to the
contractor. Furthermore, defendant contended plaintiff failed to introduce sufficient
evidence to prove his damage was proximately caused by roadway conditions created
by DOT or its contractor. All construction work was to be performed in accordance with
DOT requirements and specifications and subject to DOT approval.
       {¶4}   Plaintiff filed a response explaining that he did not report the incident to
the contractor because there was no one on site and it was still raining and very dark at
the time.
       {¶5}   Defendant presented an email communication from Kokosing project
engineer John Sheeler, who stated that according to the daily inspection reports for
April 20 and 21, “no signs needed reset, none were missing, and none damaged.”
       {¶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}   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 DOT 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.
      {¶8}   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 DOT
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 DOT to the traveling public both under normal traffic
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.
      {¶9}   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, 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 Stevens v. Indus. Comm'n. (1945), 145 Ohio St. 198, 30 O.O.
415, 61 N.E.2d 198, approved and followed.
      {¶10} 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.
Defendant professed liability cannot be established when requisite notice of the
damage-causing conditions cannot be proven. Generally, defendant is only liable for
roadway conditions of which it has notice, but fails to correct. Bussard v. Dept. of
Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR 64, 507 N.E. 2d 1179.
       {¶11} In the instant claim, plaintiff failed to produce sufficient evidence to
determine his property damage was caused by a sign that was negligently installed or
inspected by defendant or its agents.
       {¶12} Plaintiff has not shown, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to plaintiff, or that plaintiff’s injury was
proximately caused by defendant’s negligence. Plaintiff failed to show that his damage
was connected to any conduct under the control of defendant or that there was any
negligence on the part of defendant or its agents. Taylor v. Transportation Dept. (1998),
97-10898-AD; Weininger v. Department of Transportation (1999), 99-10909-AD;
Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD.             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
DIETER J. BAMBERGER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2011-06897-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:

Dieter J. Bamberger                               Jerry Wray, Director
1627 Pirates Trail                                Department of Transportation
Painesville, Ohio 44077                           1980 West Broad Street
                                                  Columbus, Ohio 43223


9/13
Filed 9/21/11
Sent to S.C. reporter 1/27/12
