[Cite as Hineline v. Ohio Dept. of Transp., Dist. 8, 2011-Ohio-1949.]

                                       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




DAVID HINELINE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

        Defendant

        Case No. 2010-09418-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, David Hineline, filed this action against defendant, Department of
Transportation (ODOT), contending ODOT should bear liability for additional expenses
he incurred when he missed a scheduled airplane flight as a result of Interstate 75 North
being closed to traffic on the morning of June 25, 2010 due to roadway construction in
Warren County. Plaintiff related, “I had a flight from Dayton, Ohio to Reno Nevada
leaving the morning of June 25 at 6:09 a.m. (and) I live in the Liberty township area of
Cincinnati.” Plaintiff recalled he left his residence during the early morning hours of
June 25, 2010 and began driving on Interstate 75 North towards the Dayton airport.
Plaintiff further recalled as he was traveling on Interstate 75 North about “one mile
before highway 73 exit” at approximately 4:25 a.m. he and other roadway traffic were
forced to come to a complete stop as “[a]ll lanes on 75 were closed and all exits were
closed.” Plaintiff noted traffic remained stopped on the roadway until approximately
5:35 a.m. on June 25, 2010. In his complaint, plaintiff pointed out the lane closures on
Interstate 75 “was all because of highway construction” and no warning or advisory
signs were posted to notify motorists of the lane closures.                  Furthermore, plaintiff
maintained no traffic control was in place to direct motorists to an alternative Route to
bypass the closed roadway. Plaintiff explained he arrived at the Dayton Airport too late
to make his 6:09 a.m. flight to Reno and all later flights to that city were “sold out.”
Plaintiff further explained he then purchased a ticket to fly to Sacramento, California and
then rented a car to drive to his intended destination, Reno, Nevada. In his complaint,
plaintiff submitted documentation showing he purchased a ticket on June 25, 2010 for a
flight from Dayton to Sacramento in the amount of $419.40.           Additionally, plaintiff
submitted documentation showing he rented a car at the Sacramento Airport at 10:59
p.m. on June 25, 2010 in the amount of $154.89. Plaintiff stated, “I had to spend an
additional $574.29 on an already expensive trip because I was sitting on an interstate
that was completely closed due to construction.”        Submitted documentation shows
plaintiff left Dayton at approximately 4:05 p.m. (EDT) on June 25, 2010 and arrived in
Sacramento at approximately 10:48 p.m. (PDT) on June 25, 2010. Plaintiff argued
ODOT should bear responsibility for additional expenses he incurred to arrive at his
intended destination of Reno due to the fact he missed his original flight because of
roadway closure on Interstate 75 in a construction project zone. The filing fee was paid.
      {¶ 2} Defendant acknowledged the particular area of Interstate 75 North that
plaintiff addressed in his complaint was located within a working construction project
under the control of ODOT contractor, The John R. Jurgensen Company (Jurgensen).
Defendant also acknowledged specific sections of Interstate 75 North were subject to
lane closures from 9:00 p.m. on June 24, 2010 to 6:00 a.m. on June 25, 2010.
Defendant related, “[t]he on-ramp from SR 73 to I-75 northbound was closed at 9 p.m.
on June 24, 2010, for placement of concrete for the new ramp.” Defendant also related,
“I-75 northbound just north of SR 73” had lane closures, however, “[t]he off ramp from I-
75 northbound to SR 73 was NOT closed and was open to traffic.” Defendant submitted
a letter from Jurgensen Safety Manager, Travis Roberts, who offered a written
explanation regarding lane closures on Interstate 75 North on the morning of June 25,
2010. Roberts wrote Jurgensen “[s]ub contractor Shelley and Sands had to close the
only open lane on I-75 North Bound at the Pennyroyal Bridge for twenty(20) minutes at
5:00 a.m. to secure a steel beam. Roberts advised that the decision to have all lanes
closed during this operation was “to ensure that neither the motoring public nor the
construction crew would be put in an unsafe situation.”         Roberts maintained that
Jurgensen sub contractor “Shelley and Sands were within the scope of their contract
and adhered to specifications when they temporarily closed I-75 North Bound for twenty
(20) minutes.” Roberts reported the public was notified of the lane closures “via media
advisories.”
       {¶ 3} 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 that his damage was proximately
caused by any breach of a duty of care owed to the motoring public by either ODOT or
its contractors. All construction work, including traffic control, was to be performed in
accordance with ODOT requirements and specifications and subject to ODOT approval.
Also evidence has been submitted to establish that ODOT personnel were present on
site conducting inspection activities.
       {¶ 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, 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.           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.
       {¶ 5} Defendant had 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} Defendant supplied a written correspondence from ODOT Project
Supervisor, Margaret (Peg) Cowell, regarding her recollection of the lane closure
situation on Interstate 75 North. The relevant portions of this document are reproduced
as follows:
       {¶ 7} “On the morning of June 25, 2010 ODOT Project 171-09 had the following
closures: I-75 Northbound just north of SR-73, and the ON ramp to I-75 Northbound
from SR-73. One lane of I-75 Northbound just north of SR-73 was closed at 7 pm on
June 24, 2010 and two lanes were closed at 10 pm that evening for the steel beams to
be removed from the Pennyroyal bridge overpass. The ON ramp from SR-73 to I-75
northbound was closed at 9 pm on June 24, 2010 for placement of concrete for the new
ramp. These closures were called in for the media advisory and all lanes of traffic were
opened at the scheduled time (5:30 am for the ON ramp from SR-73, and 6 am for all
northbound I-75 lanes). The OFF ramp from I-75 northbound to SR-73 was NOT
closed, and was open to traffic the entire evening.
       {¶ 8} “At approximately 5 am an incident occurred at the Pennyroyal bridge
overpass that resulted in the only open lane of I-75 northbound to be closed for 20
minutes. A steel beam was being lifted off of the overpass and it shifted in the “choke
hold” causing it to sway above traffic. The contractor had to close the last open lane of
I-75 northbound in order to set the beam down and secure it better so it did not cause
any problems directly over traffic. This closure was done for safety reasons so that the
unstable beam did not hit a vehicle driving underneath it, or cause any vehicle to crash.
        {¶ 9} “The ODOT inspector was with the concrete pour operation on the SR-73
ON ramp during this incident. I came to work on the evening of June 24, 2010 to check
all of the closures, and they were all in accordance with the maintenance of traffic plans
for this project and with the Ohio Manuel of Uniform Traffic Control Devices.”
        {¶ 10} “If any injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in the 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. Evidence available tends to point out the roadway was maintained properly
under ODOT specifications.      Plaintiff failed to prove his damage was proximately
caused by any breach of a duty of care owed to him on either 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; Vanderson v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-09961-AD, 2006-
Ohio-7163; Shiffler v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-07183-AD, 2008-Ohio-
1600.




                               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




DAVID HINELINE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8
        Defendant

         Case No. 2010-09418-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:

David Hineline                                    Jolene M. Molitoris, Director
5639 Selu Drive                                   Department of Transportation
Hamilton, Ohio 45011                              1980 West Broad Street
                                                  Columbus, Ohio 43223

RDK/laa
1/5
Filed 1/28/111
Sent to S.C. reporter 4/15/11
