[Cite as Swank v. Ohio Dept. of Transp., 2010-Ohio-2316.]

                                      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




MICHELLE A. SWANK

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-08608-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Michelle A. Swank, filed this action against defendant,
Department of Transportation (ODOT), alleging her 2003 Chevrolet Tahoe received
paint damage while traveling on US Route 40 when ODOT personnel were applying
fresh centerline paint to the roadway at approximately 11:00 a.m. on October 8, 2009.
Plaintiff, more specifically, located her paint damage incident “on Route 40 in Tipp
City/Huber Heights around the corner at Sullivan Rd.” According to plaintiff, yellow
centerline paint “ran across the road (and) I was not able to go around the running paint
because it was raining and went (across) the whole road.” Plaintiff pointed out she later
discovered “yellow splashes down the entire left side (driver side) and on the rear of the
auto.” Plaintiff recalled she tried to remove the paint from her vehicle by washing it “and
then not only did the yellow paint not come off but it was up to the windows on the
(driver’s) side; on the entire rear, and on the left (tire’s) trims.” Plaintiff asserted she
reported her damage to ODOT employee, Jeff Whetstone, on October 9, 2009 and he
confirmed a paint crew had applied centerline paint to US Route 40 on October 8, 2009.
Plaintiff submitted photographs of the roadway area where her paint damage incident
occurred. The photographs depict a yellow painted centerline with a vast area where it
appears the centerline paint has run or bled onto the traveled portion of the roadway.
The photographs show roadway areas where fresh yellow paint has obviously exuded
from the application point across the roadway. Plaintiff also submitted photographs
depicting the paint damage on her 2003 Chevrolet Tahoe. These photographs depict
damage consistent with driving over a sizable area of fresh wet paint.             Plaintiff
contended the paint damage to her vehicle was proximately caused by negligence on
the part of ODOT in conducting road painting operations on US Route 40 on October 8,
2009. Plaintiff seeks recovery of damages in the amount of $2,500.00 for paint removal
costs and car rental expenses. The filing fee was paid.
       {¶ 2} Defendant acknowledged ODOT personnel were painting the yellow
centerline on US Route 40 in Miami County on October 8, 2009; including the roadway
area where plaintiff asserted her damage occurred, which ODOT located at milepost
0.69. Defendant explained three trucks were involved in the painting operation which is
classified as “a moving work zone that comes under the authority of the Manual of
Traffic Control for Construction and Maintenance Operations (Manual).”          Defendant
insisted all traffic control requirements mandated by the Manual were observed during
the course of the centerline painting. Defendant pointed out the “[t]raffic control that
was in effect for the paint operation in question included the paint striper and two pickup
trucks with signage.” Additionally, defendant noted in describing the operation “[t]here
were signs stating ‘Wet Paint’ and cones were placed throughout the operation on the
RPMs (reflective pavement markers) of US 40.” Defendant insisted “[t]he cones were
not picked up until the paint was dry and then the crew left for another operation on I-
75.” Defendant denied any liability in this matter arguing that plaintiff did not offer
sufficient evidence to prove her damage was attributable to any conduct attributable to
ODOT. Defendant asserted the paint crew did not leave the painting operation on US
Route 40 until the yellow centerline paint was dry. Defendant advised that the painting
crew used all proper traffic control during the painting operation and consequently,
defendant contended ODOT discharged any duty of care owed to the motoring public.
       {¶ 3} Defendant submitted a statement from ODOT employee, Jeff Whetstone,
regarding his knowledge of the October 8, 2009 painting activity and his contact with
plaintiff when she reported the paint damage to her vehicle on October 9, 2009.
Although Whetstone was in charge of the painting operation, it does not appear he was
actually onsite during the painting. Whetstone recorded the centerline of US Route 40
was covered during the morning of October 8, 2008 as paint was applied and was
“released to public travel as (the) centerline cured.” Whetstone recalled “[l]ater in the
day light rain showers moved into the area causing some washing of centerline in
limited areas,” but the centerline remained, “intact.” Whetstone acknowledged receiving
a telephone call from plaintiff on October 9, 2009, “informing me she had got into some
yellow paint on Route 40 the previous day at about 11:30 a.m.” Whetstone offered the
following written narrative of his conversation with plaintiff stating: “she (plaintiff) said it
was a small amount (paint) on the driver’s side of the vehicle. I asked her if she made
any attempt to wash the paint off her vehicle as it is a latex water soluble paint and
although it had been 26 hours it may still wash off in a car wash. She stated at that time
she made no attempt to wash the vehicle as she thought the rain would wash it off.”
Defendant submitted a copy of Whetstone’s handwritten phone log where he
memorialized his recollection of the conversation with plaintiff. Whetstone noted in the
phone log the following information: “Got in paint (yellow) on 40 at 11:30 Thurs. 10/8
called 12:50 on the 9th Fri. Noticed in the paint thurs made no attempt to remove
thought rain would wash it.”
       {¶ 4} Defendant submitted written statements from the four ODOT employees
involved in the October 8, 2009 painting, Mark Knoch, who worked on the paint striper,
striper driver, Mark Hovatter, James Alexander, and Doug Snider. Snider recorded
cones were placed on the roadway “about every 100" feet and after paint was applied
the crew “waited about 15-20 minutes until the paint was dry and picked up our cones.”
Alexander recalled all advisory signs of “Wet Paint” were in place on all trucks in the
moving operation. Alexander noted cones were placed on every RPM on the centerline
approximately every eighty feet and “[a]fter the paint was dry we picked up the cones
and left.”   Knoch recalled signage was in place, cones were positioned on the
centerline, and the cones were not removed until “after the paint had cured.”
Additionally, Knoch recalled “[t]he paint did not track and was dry too the touch.” Also
Hovatter advised cones were positioned about one hundred feet apart during the
painting procedure and the cones were not removed until “[t]he paint would not track no
more.” Hovatter related “I got passed by a SUV or a Mini Van” at sometime while he
was driving the paint striper. Additionally, Hovatter related, “I saw cars cross line and
not pick up paint on tires.”
        {¶ 5} Plaintiff filed a response pointing out she submitted photographs depicting
yellow paint running across the roadway from the centerline area and no tire marks are
present on the roadway or centerline. Plaintiff advised the particular portion of US
Route 40, a section over one mile long, has had the centerline repainted “since my
formal complaint” (presumedly after November 2, 2009, the date this action was
commenced). Plaintiff disputed defendant’s contention that she did not try to remove
the paint from her vehicle by washing it noting, “I did attempt to wash the car off.”
Plaintiff also disputed defendant’s assertions that cones were in place on the centerline
until the paint had dried. Plaintiff stated “[w]hen I went by around 11:00 am (on October
8, 2009) none of the safety precaution item that (ODOT personnel) had noted were
present” on the roadway. Plaintiff again referenced the photographs she submitted of
yellow paint bleeding across the road, arguing “[i]f the paint ran (across) the road it
could not have been dry.” Furthermore, plaintiff offered that “[t]heir [sic] were no signs
in place and there were no workers present” when she traveled on US Route 40 on
October 8, 2009. Plaintiff reiterated she unsuccessfully attempted to wash the paint
from her vehicle after speaking with ODOT employee, Jeff Whetstone.               Plaintiff
referenced evidence submitted by defendant (Jeff Whetstone’s phone log) regarding a
November 2, 2009 telephone complaint by a Bob Bush who claimed he received yellow
paint on his truck while traveling on US Route 40 in Miami County on an unspecified
date.   Apparently, the last time yellow paint was applied to US       Route 40 prior to
November 2, 2009, was October 8, 2009.
        {¶ 6} 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.
      {¶ 7} 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.
      {¶ 8} Plaintiff has the burden of proof to show her property damage was the
direct result of the failure of defendant’s agents to exercise ordinary care in conducting
roadway painting operations. Brake v. Department of Transportation (2000), 99-12545-
AD. A failure to exercise ordinary care may be shown in situations where motorists do
not receive adequate or effective advisement of an ODOT painting activity.            See
Hosmer v. Ohio Department of Transportation, Ct. of Cl. No. 2002-08301-AD, 2003-
Ohio-1921.
      {¶ 9} “If an 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. 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.
      {¶ 10} The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to
believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. In the instant action, the trier of fact
finds that the statements of plaintiff concerning fresh paint exuding onto the roadway
are persuasive.
      {¶ 11} In the instant claim, plaintiff has provided sufficient proof to establish her
vehicle received paint damage as a proximate cause of negligence on the part of
defendant. Hosmer. Broz v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-08863-AD,
2005-Ohio-453. Defendant is liable to plaintiff in the amount of $2,500.00, plus the
$25.00 filing fee, which may be reimbursed as compensable costs pursuant to R.C.
2335.19. See Bailey v. Ohio Department of Rehabilitation and Correction (1990), 62
Ohio Misc. 2d 19, 587 N.E. 2d 990.

                               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




MICHELLE A. SWANK

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2009-08608-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 plaintiff in the amount of $2,525.00, which includes the filing fee. Court costs are
assessed against defendant.
                                DANIEL R. BORCHERT
                                Deputy Clerk

Entry cc:

Michelle A. Swank               Jolene M. Molitoris, Director
9290 Shroyer Drive              Department of Transportation
Tipp City, Ohio 45371           1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
1/25
Filed 2/22/10
Sent to S.C. reporter 5/21/10
