[Cite as Siemens v. Ohio Dept. of Transp., 2011-Ohio-3965.]



                                      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




KEVIN SIEMENS

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2010-12966-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} On October 1, 2010, at approximately 5:30 p.m., plaintiff, Kevin Siemens,
was traveling north on Interstate 75 “south of highway 73 in a construction zone” in the
far left lane when a “semi traveling in center lane struck a large piece of tire tread in the
roadway” causing the object to be propelled into the path of the vehicle plaintiff was
driving. The propelled object struck the front of plaintiff’s vehicle causing substantial
body and structural damage to the vehicle. Plaintiff implied that the damage to the
automobile was proximately caused by negligence on the part of defendant, Department
of Transportation (ODOT), in failing to maintain the roadway free of hazardous debris
conditions. Plaintiff filed this complaint seeking to recover $2,300.00, which represents
$500.00 for his insurance coverage deductible, $300.00 for rental car expenses, and
$1,500.00 for “[d]iminished value to the vehicle.” The filing fee was paid.
        {¶ 2} Defendant explained that the roadway area where plaintiff’s incident
occurred was within the limits of a working construction project under the control of
ODOT contractor, John R. Jurgensen Company (Jurgensen). Defendant related that
the particular construction project “dealt with grading, draining, planning and pavement
repair of I-75, interchange reconstruction of SR 122 and bridge replacements at several
locations in Warren County.” According to defendant, the construction project limits
“corresponds to state mileposts 32.10 to 40.50” on Interstate 75 and plaintiff’s damage
incident occurred “near state milepost 38.45 which is within the project limits.”
       {¶ 3} Defendant asserted that this particular construction project was under the
control of Jurgensen and consequently ODOT had no responsibility for any damage or
mishap on the roadway within the construction project limits. Defendant argued that
Jurgensen, by contractual agreement, was responsible for maintaining the roadway
within the construction zone. Therefore, ODOT contended that Jurgensen is the proper
party defendant in this action. 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. Furthermore, defendant contended that plaintiff failed to introduce sufficient
evidence to prove his damage was proximately caused by roadway conditions created
by ODOT or its contractors. All construction work was to be performed in accordance
with ODOT requirements and specifications and subject to ODOT approval.
       {¶ 4} 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.
       {¶ 5} 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
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 the particular construction work. See Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
      {¶ 6} Alternatively, defendant denied that either ODOT or Jurgensen had any
notice “of debris lying on I-75” prior to plaintiff’s property-damage event. Defendant
pointed out ODOT records “indicate that one complaint was received at the Warren
County Garage for I-75 regarding the construction on I-75 but not because of debris in
the same location as [plaintiff’s] incident.”   Defendant argued that plaintiff failed to
produce any evidence to prove the damage-causing debris condition was attributable to
any conduct on either the part of ODOT or Jurgensen. Defendant submitted a copy of
an e-mail from Jurgensen representative Jodi Lantz, who reported Jurgensen “could not
accept liability for [plaintiff’s] claim because we are not responsible for items thrown
from the roadway. * * * traffic control crews monitor the project area twice a day and we
do our best to remove any debris that is left on the roadway.”
      {¶ 7} 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 under both 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.
      {¶ 8} Ordinarily 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. 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. There is no evidence
to show that any construction activity caused the debris condition.
       {¶ 9} Generally, in order to recover in any suit involving injury proximately caused
by roadway conditions including debris, plaintiff must prove that either: 1) defendant
had actual or constructive notice of the debris 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 (1976), 75-
0287-AD. Plaintiff has not produced any evidence to indicate the length of time that the
debris was present on the roadway prior to the incident forming the basis of this claim.
No evidence has been submitted to show that defendant had actual notice of the debris.
Additionally, the trier of fact is precluded from making an inference of defendant’s
constructive notice, unless evidence is presented in respect to the time that the debris
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458. There is no indication that defendant had constructive notice
of the debris.
       {¶ 10} Plaintiff has not produced any evidence to infer that defendant, in a
general sense, maintains its highways negligently or that defendant’s acts caused the
defective condition. Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD.
Plaintiff has failed to prove that his damage was proximately caused by any negligent
act or omission on the part of ODOT or its agents. See Wachs v. Dept. of Transp., Dist.
12, Ct. of Cl. No. 2005-09481-AD, 2006-Ohio-7162; Nicastro v. Ohio Dept. of Transp.,
Ct. of Cl. No. 2007-09323-AD, 2008-Ohio-4190.
       {¶ 11} Defendant has contended debris plaintiff’s car struck “was displaced by a
third party and it was not a state truck.” Defendant has denied liability based on the
particular premise it had no duty to control the conduct of a third person except in cases
where a special relationship exists between defendant and either plaintiff or the person
whose conduct needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin Const. Co.
(1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769, Jordan v. Ohio Dept. of Transp., Dist. 8,
Ct. of Cl. No. 2010-01336-AD, 2010-Ohio-4583. However, defendant may still bear
liability if it can be established some act or omission on the part of ODOT was the
proximate cause of plaintiff’s injury. No evidence has been presented to establish the
damage claimed was proximately caused by any act or omission on the part of either
ODOT or Jurgensen.
                                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




KEVIN SIEMENS

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

        Case No. 2010-12966-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:

Kevin Siemens                                    Jerry Wray, Director
454 Christopher Drive                            Department of Transportation
Centerville, Ohio 45458                          1980 West Broad Street
                                                 Columbus, Ohio 43223
SJM/laa
4/14
Filed 4/27/11
Sent to S.C. reporter 8/10/11
