[Cite as White v. Ohio Dept. of Transp., 2015-Ohio-4850.]
                              IN THE COURT OF CLAIMS OF OHIO



MICHAEL WHITE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2014-00875-AD

Clerk Mark H. Reed

MEMORANDUM DECISION


        {¶1} On November 4, 2014, Michael White filed a complaint in this Court against
the Ohio Department of Transportation (hereinafter “ODOT”). In his complaint, plaintiff
White alleged that on August 22, 2014 his 2004 Pontiac Grand Prix was damaged when
he entered onto a temporary driveway leading to his property located at 4201 Lake
Road East in Geneva, Ashtabula County, Ohio. This driveway was constructed by the
Mark Haynes Construction Company, who was under contract with ODOT to improve
that part of SR 531 that fronted plaintiff’s property. Plaintiff White alleges that as he
turned onto the driveway from SR 531, his vehicle dropped down unexpectedly causing
his lower bumper to scrape and crack. The plaintiff claims this damage was the result
of the contractor’s failure to properly grade and smooth the temporary driveway. The
cost to repair plaintiff’s vehicle was $1,100.00.           No information regarding plaintiff’s
insurance was provided to the Court.
        {¶2} In an Investigation Report filed with the Court on February 20, 2015, ODOT
did not deny the fact that plaintiff’s vehicle was damaged while driving onto his
driveway, nor did the Department dispute the amount of damages.
        {¶3} According to the Investigation Report, this project, which involved improving
this section of SR 531 in Geneva and Saybrook Township, was under construction by
the Mark Haynes Construction Company. The Department related that ODOT had not
received any complaints from the plaintiff or anyone else concerning the temporary
driveway within the construction zone, during the six (6) months prior to plaintiff’s
accident. In construction cases like this one, the court may only pass judgment on
whether the plaintiff has shown that ODOT breached its duty to the public in managing
the contractor in a reasonable manner thus ensuring the safety of the public within the
construction zone.
      {¶4} As the Court considers whether ODOT breached its duty to the public, the
Court must take into account that the area where the accident occurred was a
construction zone. Ohio law is clear that ODOT cannot guarantee the same level of
safety during a highway construction project as it can under normal traffic conditions.
Feichtner v. Ohio Dept. of Transp. (1995), 114 Ohio App. 3d346, 354; Roadway
Express, Inc. The test is whether, under the totality of the circumstances, "ODOT acted
sufficiently to render the highway reasonably safe for the traveling public during the
construction project." Basilone v. Ohio Dept. of Transp. (Feb. 13, 2001), Franklin App.
No. 00AP-811, citing Feichtner, and Lumbermens Mut. Cas. Co. v. Ohio Dept. of
Transp. (1988), 49 Ohio App.3d. 129.
      {¶5} In this case, there is nothing in the record that would allow the Court to find
that the department did not act appropriately to keep the construction area reasonably
safe. The construction of the temporary driveway was not an unreasonable solution to
provide access to plaintiff’s property during the time that the road construction was
ongoing. A close read of defendant’s Exhibit D leads the Court to conclude that there is
no sustainable evidence of neglect on the part of ODOT. The plaintiff did not offer any
evidence to counter what was in ODOT’s investigation report regarding this element.
However, Mark Haynes Construction, Inc. is an independent contractor and that entity
Case No. 2012-06637                       -3-                                   ENTRY

would be responsible for any negligent actions of its employees.
      {¶6} Since the plaintiff is unable to prove that the defendant knew or should have
known about this dangerous condition, the claim must fail.




                        IN THE COURT OF CLAIMS OF OHIO



MICHAEL WHITE

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

Case No. 2014-00875-AD

Clerk Mark H. Reed

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.
                                                ________________________________
                                                MARK H. REED
                                                Clerk

Entry cc:

Michael White                                   Jerry Wray, Director
4201 Lake Road East              Ohio Department of Transportation
Geneva, Ohio 44041               1980 West Broad Street
                                 Mail Stop 1500
                                 Columbus, Ohio 43223


Filed 4/16/15
Sent to S.C. Reporter 11/24/15
