[Cite as Ferguson v. Ohio Dept. of Transp., 2011-Ohio-7065.]



                                      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




SHEILA FERGUSON

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2011-09535-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    On July 6, 2011, at approximately 5:45 a.m., plaintiff, Sheila Ferguson,
was traveling north on Interstate 77 when “between Grant & Harvard a orange barrel
rolled out into the highway.” Plaintiff related, “[t]he barrel hit the driver side of the car &
caused damage to the bumper & fog light & fender.” Plaintiff implied the damage to her
van 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 damages in the amount of
$1,475.95, the estimated cost of vehicle repair. The filing fee was paid.
        {¶2}    Defendant located plaintiff’s incident “between mileposts 11.43 and 12.12
on I-77 in Cuyahoga County.” 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, Karvo Paving Company (Karvo).                     According to
defendant, the construction project “started at milepost 8.46 and ended at milepost
14.34” on Interstate 77. Thus, plaintiff’s damage event was located within the project
limits. Defendant asserted that this particular construction project was under the control
of Karvo and consequently ODOT had no responsibility for any damage or mishap on
the roadway within the construction project limits. Defendant argued that Karvo, by
contractual agreement, was responsible for maintaining the roadway within the
construction zone.     Therefore, ODOT contended that Karvo is the proper party
defendant in this action.
       {¶3}    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 her
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, she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her 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 she 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.
         {¶6}    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.
         {¶7}    Defendant denied that either ODOT or Karvo had any notice of
construction barrels rolling in the highway on I-77 prior to plaintiff’s property-damage
event.      Defendant advised that no calls or complaints were received from other
motorists regarding a displaced barrel despite the fact that the particular section of
Interstate 77 “has an average daily traffic count between 42,600 and 77,270 vehicles.”
Defendant contended plaintiff failed to offer any evidence to establish her damage was
attributable to any conduct on either the part of ODOT or Karvo. Defendant further
contended plaintiff failed to produce any evidence to prove the construction area was
negligently maintained.
         {¶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
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.
         {¶9}    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 barrel to be displaced. Plaintiff has
failed to prove that her 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.
                                 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




SHEILA FERGUSON

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-09535-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:

Sheila Ferguson                                   Jerry Wray, Director
32857 So. Roundhead Drive                         Department of Transportation
Solon, Ohio 43139                                 1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
11/3
Filed 11/9/11
Sent to S.C. reporter 4/5/12
