[Cite as Ruyle v. Ohio Dept. of Transp., Dist. 2, 2009-Ohio-7174.]

                                       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




KRISTIN RUYLE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 2

        Defendant

        Case No. 2009-07661-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Kristin Ruyle, asserted the windshield on her 2009 Honda Civic
was cracked by “a piece of debris” while she was traveling south on Interstate 75 in
Lucas County at approximately 4:45 p.m. on September 3, 2009. Plaintiff pointed out
that at the time of her damage incident there was roadway construction activity in the
area on both the southbound and northbound lanes of Interstate 75. Plaintiff described
her property damage occurrence relating that as she was driving south on Interstate 75,
“I had to merge to the right because the left lane was closed (and) [a]s I looked to the
right lane to merge, a piece of debris, from my left, hit the windshield.” According to
plaintiff, the location of her damage event was at some point as she traveled “south on
Michigan Ave. to exit downtown Toledo to 75 South.” Plaintiff implied the damage to
her car windshield 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 $230.00,
the cost of a replacement windshield. The filing fee was paid.
        {¶ 2} Defendant explained the particular section of roadway on Interstate 75
where plaintiff’s incident occurred “was near a construction zone” under the control of
ODOT contractor, Posen Construction, Inc. (Posen). Defendant further explained the
construction project area under the control of Posen was located “between county
mileposts 32.68 to 33.68 or state mileposts 199.50 to 200.40 on I-75 from Wood to
Lucas County.” According to defendant, the area where Posen worked “was only 0.90
mile long.” Defendant related that from plaintiff’s description reported in her complaint,
the location of her damage occurrence “puts her between county mileposts 2.05 to 1.70
or state mileposts 201.70 to 201.40 which is not within the project limits (and) more than
a mile away from the project limits.” Defendant submitted an e-mail from Posen Safety
Coordinator, Michael Thomas, who recorded that he talked to plaintiff on September 9,
2009 to ascertain the specific location where her incident occurred. Thomas noted he
was informed by plaintiff that her car was struck by concrete debris at the entrance of
the Interstate 75 South ramp from Michigan Avenue. Thomas wrote “[t]his incident
happened north of our project.” Additionally, Thomas pointed out Posen was “working
South of that ramp and on the Northbound side.”
      {¶ 3} Defendant denied liability in this matter based on the contention that
neither ODOT nor Posen had any knowledge of debris on Interstate 75 prior to plaintiff’s
property damage event. Defendant denied any knowledge of prior incidents regarding
debris on this particular section of Interstate 75 between state mileposts 201.70 and
201.40. Defendant suggested the damage-causing debris “existed in that location for
only a short amount of time before plaintiff’s incident.” Defendant asserted plaintiff
failed to produce evidence to establish her damage was proximately caused by any
negligent act or omission on the part of ODOT employees. Defendant pointed out the
ODOT Lucas County Manager routinely inspects all state roadways within the county “at
least one to two times a month” and ODOT personnel conducted litter pickups and a
litter patrol operation in the area of plaintiff’s incident on March 2, 2009, May 21, 2009,
May 28, 2009 and September 2, 2009. Defendant stated “that if ODOT personnel had
found any debris it would have been picked up and defendant was there last on
September 2, 2009, which is a day before plaintiff’s incident.” Defendant contended
plaintiff failed to offer sufficient evidence to prove her windshield was damaged as a
result of ODOT breaching any duty of care owed to her as a motorist traveling on a
state roadway.
      {¶ 4} Plaintiff filed a response insisting the location of her property damage
incident was within the construction project limits where Posen was working. Plaintiff
disagreed with defendant’s conclusion that the incident was located “more than a mile
away from the project limits.” Plaintiff stated “from her entry on I75 Southbound (from
the top of the ramp) to where her car was hit, was .8 miles only .2 miles from the South
Avenue exit ramp.”      Furthermore, plaintiff stated she “has no knowledge of what
construction debris may have been there, but she knows that her car was damaged as
she entered the construction area.” Plaintiff surmised her windshield would not have
been cracked “if the construction was not going on.”          Plaintiff specifically denied
claiming ODOT was negligent in maintaining the roadway. Plaintiff observed she has
no knowledge of how thorough ODOT personnel are when conducting litter pickup
operations.
      {¶ 5} 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, 788 N.E. 2d 1088, ¶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.
      {¶ 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. 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.
      {¶ 7} Generally, in order 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. See 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. Plaintiff, in
the instant claim, has alleged that the damage to her vehicle was directly caused by
construction activity of ODOT’s contractor on September 3, 2009.
      {¶ 8} “If an injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in light of all the attending circumstances,
the injury is then the proximate result of the negligence. It is not necessary that the
defendant should have anticipated the particular injury. It is sufficient that his act is
likely to result in an injury to someone.” Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d
155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber Co. v. First National Bank
of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E. 327. 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.
      {¶ 9} 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
both under normal traffic conditions 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. Plaintiff
has failed to prove 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




KRISTIN RUYLE

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 2

      Defendant

      Case No. 2009-07661-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:

Kristin Ruyle                   Jolene M. Molitoris, Director
11175 Centerville               Department of Transportation
Whitehouse, Ohio 43571          1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
11/17
Filed 11/20/09
Sent to S.C. reporter 3/12/10
