[Cite as Donely v. Ohio Dept. of Transp., 2010-Ohio-2184.]

                                      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




ISREAL DONELY

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-08292-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On February 11, 2009, at approximately 10:15 p.m., plaintiff, Isreal
Donley, was traveling south on Interstate 75 in Butler County through a construction
zone, when his 1999 Chevrolet Monte Carlo was struck by a construction sign that had
blown from the roadside into the path of the vehicle. The wind blown sign caused
substantial body damage to plaintiff’s car.                  Plaintiff asserted the damage to his
automobile was proximately caused by negligence on the part of defendant, Department
of Transportation (ODOT), in maintaining a sign in a roadway construction area.
Plaintiff filed this complaint seeking to recover $2,039.03, the estimated cost of
automotive repairs needed resulting from the February 11, 2009 property damage
incident. The filing fee was paid.
        {¶ 2} Along with his complaint, plaintiff submitted a copy of a “Traffic Crash
Report” he filed with the Ohio State Highway Patrol (OSHP) in connection with the
February 11, 2009 damage occurrence. The OSHP compiler of the report (filed on
February 13, 2009) recorded “[t]he date, time, and area in which the crash (occurred)
was experiencing extremely high wind gusts throughout the day and night.” Weather
conditions at the time of the incident recorded on the OSHP report included the
notation, “severe crosswinds.”     the OSHP report contained a handwritten witness
statement from plaintiff, who acknowledged “[t]he weather was rain and high winds
about 10:15 that night.” In his statement, plaintiff recalled “my car was struck by a city
work sign after the sign had hit another vehicle.”
       {¶ 3} Defendant acknowledged that the area where plaintiff’s described damage
event occurred was located within a construction zone maintained by ODOT contractor,
John R. Jurgensen Company (Jurgensen). Defendant related the construction “project
dealt with widening of I-75 between Cincinnati-Dayton Road and SR 122 in Butler and
Warren Counties” between mileposts 21.0 and 32.0.           From plaintiff’s description,
defendant located the particular property damage occurrence at milepost 27.5.
Defendant asserted Jurgensen, by contractual agreement, was responsible for
maintaining the roadway within the construction area and bore responsibility for any
damage occurrences or mishaps within the project limits. Therefore, ODOT argued
Jurgensen is the proper party defendant in this action, despite the fact that all
construction work was to be performed in accordance with ODOT requirements,
specifications, and approval.     Defendant also pointed out that an ODOT Project
Engineer maintained an onsite presence. 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.
       {¶ 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, that it breached that
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 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. 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 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 road 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 particular construction work.       See Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
      {¶ 6} 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.       Alternatively, defendant denied that neither ODOT nor
Jurgensen had notice of a problem with a sign at milepost 27.5. Defendant related that
ODOT “records indicate that no calls or complaints were received regarding loose signs
prior to Plaintiff Donley’s incident.” Defendant contended plaintiff failed to prove ODOT
maintains the roadway negligently or that his property damage was attributable to any
conduct on either the part of ODOT or Jurgensen.
      {¶ 7} Defendant pointed out there is substantial evidence that high winds were
prevalent in the area from 4:00 p.m. February 11, 2009 into the next morning.
Defendant contended plaintiff’s damage was therefore caused solely by a force of
nature and no negligence on either the part of ODOT or Jurgensen attributed to the
damage claimed.
       {¶ 8} Plaintiff filed a response asserting that his property damage was the result
of a failure on the part of defendant’s contractor to secure the sign “to the ground
properly.”      Plaintiff acknowledged high wind conditions existed on the night of his
property damage event, but argued the damage to his vehicle would not have occurred
but for negligent sign maintenance on the part of ODOT’s contractor. Plaintiff did not
submit any evidence to establish the damage-causing sign was not properly installed
according to ODOT specifications.
       {¶ 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
to 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; Rhodus,
67 Ohio App. 3d 723, 588 N.E. 2d 864.
       {¶ 10} Ordinarily in a claim involving roadway defects, plaintiff must prove that
either: 1) defendant had actual or constructive notice of the defective condition and
failed to respond in a reasonable time or responded in a negligent manner, or 2) that
defendant, in a general sense, maintains its highways negligently. Denis v. Department
of Transportation (1976), 75-0287-AD.        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.
Although defendant’s contractor created certain conditions by installing a sign, plaintiff
has to prove defendant’s agents created a dangerous condition when the sign was
anchored. Plaintiff has seemingly contended that the damage to his car would not have
occurred under such circumstances had ordinary care been observed in regard to sign
installation.
       {¶ 11} Res ipsa loquitur has been defined as a “rule of evidence which permits
the trier of fact to infer negligence on the part of defendant from the circumstances
surrounding the injury to plaintiff.” Hake v. Wiedemann Brewing co. (1970), 23 Ohio St.
2d 65, 66, 52 O.O. 2d 366, 363 N.E. 2d 703. The doctrine is applicable where the
instrumentality that caused the injury was, either at the time of the injury or at the time of
the creation of the condition causing the injury, (1) under the exclusive management
and control of defendant, and (2) the injury would not have occurred if ordinary care had
been observed. Hake, at 66-67.
       {¶ 12} The doctrine has limited application, however, as stated in Jennings Buick,
Inc. v. Cincinnati (1980), 63 Ohio St. 2d 167, at 172, 17 O.O. 3d 102, 406 N.E. 2d 1385:
       {¶ 13} “The maxim res ipsa loquitur relates merely to negligence prima facie and
is available without excluding all other possibilities, but it does not apply where there is
direct evidence as to the cause, or where the facts are such that an inference that the
accident was due to a cause other than defendant’s negligence could be drawn as
reasonably as that it was due to his negligence. * * *”
       {¶ 14} “Where it has been shown by the evidence adduced that there were two
equally efficient and probable causes of the injury, one of which is not attributable to the
negligence of defendant, the rule of res ipsa loquitur does not apply.” Jennings, at 171.
Where the trier of fact cannot reasonably find one of the probable causes more likely
than the other the doctrine of res ipsa loquitur is inapplicable. Jennings.
       {¶ 15} Assuming plaintiff’s car was damaged by a sign maintained by Jurgensen
and subject to ODOT inspection, the doctrine of res ipsa loquitur does not apply to the
facts of the instant claim. Evidence has shown that high velocity winds were present in
the area for several hours on February 11, 2009. Plaintiff acknowledged his car was
struck by a wind blown sign. Plaintiff did not provide any evidence to suggest the sign
was in disrepair or improperly installed. It is well settled Ohio law that if an “Act of God”
is so unusual and overwhelming as to do damage by its own power, without reference
to and independently of any negligence by defendant, there is no liability. Piqua v.
Morris (1918), 98 Ohio St. 42, 49, 120 N.E. 300. The term “Act of God” in its legal
significance, means any irresistible disaster, the result of natural causes, such as
earthquakes, violent storms, lightening and unprecedented floods. Piqua, at 47-48. In
refusing to apply the doctrine of res ipsa loquitur to the facts of the instant claim, the
court finds plaintiff’s damage could have been proximately caused by a force of nature,
high velocity wind gusts, as opposed to any negligent act or omission on the part of
defendant or its agents.
      {¶ 16} “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. Plaintiff has failed to offer proof that his property damage was connected to
any conduct under the control of defendant, that defendant was negligent in maintaining
the construction area, or that there was any negligence on the part of defendant or its
agents. Taylor v. Transportation Dept. (1998), 97-10898-AD; Weininger v. Department
of Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation
(2000), 2000-04758-AD. Consequently, plaintiff’s claim is denied.




                               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




ISREAL DONLEY

      Plaintiff

      v.
OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2009-08292-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:

Isreal Donley                                     Jolene M. Molitoris, Director
305 Kenilworth                                    Department of Transportation
Dayton, Ohio 45405                                1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
1/26
Filed 2/18/10
Sent to S.C. reporter 5/14/10
