[Cite as Rohrer v. Ohio Dept. of Transp. (Dist. 6), 2011-Ohio-4582.]



                                       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




TAMARA ROHRER

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION (DISTRICT 6)

        Defendant

        Case No. 2011-01950-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1} On September 15, 2010, at approximately 7:45 a.m., plaintiff, Tamara
Rohrer, was traveling west on Interstate 70 “just before exit #80 (in the far left lane)
when the black donut-shaped base of a construction barrel” was struck by the truck
traveling in front of plaintiff causing the object to come “flying through the air, landing on
the hood of my car.” The propelled object struck the front of plaintiff’s vehicle causing
substantial body and structural damage to the vehicle. Plaintiff implied that the damage
to the automobile 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 $607.52,
which represents $500.00 for her insurance coverage deductible, and $107.52 for rental
car expenses. The filing fee was paid.
        {¶2} Defendant explained that the roadway area where plaintiff’s incident
occurred was within the limits of a working construction project under the control of
ODOT contractor, Shelly and Sands, Inc. (Shelly). Defendant related that the particular
construction project “dealt with full depth pavement removal *** and other related works
as specified in the plans.” According to defendant, the construction project was located
at milepost 8.68, and plaintiff’s incident would have been “between county mileposts
10.27 and 8.62” on I-70 in Madison County.
      {¶3} Defendant asserted that pursuant to the contract terms Shelly has control
of the work zone which includes the beginning and end points of the highway project.
Consequently ODOT had no responsibility for any damage or mishap on the roadway
within the construction project limits.   Defendant argued that Shelly, by contractual
agreement, was responsible for maintaining the roadway within the construction zone.
Therefore, ODOT contended that Shelly 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 her damage was
proximately caused by roadway conditions created by ODOT or its contractors. All
construction work was to be performed in accordance with ODOT requirements and
specifications and subject to ODOT approval.
      {¶4} 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.
      {¶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 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} Alternatively, defendant denied that either ODOT or Shelly had any notice
“of the construction barrel on I-70” prior to plaintiff’s property-damage event. Defendant
pointed out ODOT records document that two complaints were received at the Madison
County Garage regarding the construction on I-70 but not because of debris in the same
location as plaintiff’s incident. Defendant argued that plaintiff failed to produce any
evidence to prove the damage-causing debris condition was attributable to any conduct
on either the part of ODOT or Shelly. Defendant submitted a copy of an e-mail from
ODOT District 6 Manager Tom Besinger who reported that during the time of plaintiff’s
incident, work “was being performed in the eastbound lanes of I-70 in Madison County”
and that the “three westbound lanes were free of traffic control construction barrels.”
Besinger opined, “I feel confident that no barrels or rings were left in the westbound
travelled lanes by Shelly and Sands.”
       {¶7} Plaintiff filed a response insisting that the base of the barrel that struck her
car was equipment from Shelly and that Shelly was negligent.            On May 4, 2011,
defendant filed a reply to plaintiff’s response wherein defendant essentially reiterated
the statements contained in its investigation report.
       {¶8} 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 under both normal traffic
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.
       {¶9} Ordinarily 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. 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 provided
insufficient evidence to show that any construction activity caused the debris condition.
       {¶10}   Generally, in order to recover in any suit involving injury proximately
caused by roadway conditions including debris, plaintiff must prove that either:        1)
defendant had actual or constructive notice of the debris 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. Plaintiff has not produced any evidence to indicate the length of
time that the debris was present on the roadway prior to the incident forming the basis
of this claim. No evidence has been submitted to show that defendant had actual notice
of the debris. Additionally, the trier of fact is precluded from making an inference of
defendant’s constructive notice, unless evidence is presented in respect to the time that
the debris appeared on the roadway. Spires v. Ohio Highway Department (1988), 61
Ohio Misc. 2d 262, 577 N.E. 2d 458.         There is no indication that defendant had
constructive notice of the debris.
       {¶11}   Plaintiff has not produced any evidence to infer that defendant, in a
general sense, maintains its highways negligently or that defendant’s acts caused the
debris to be on the roadway. Herlihy v. Ohio Department of Transportation (1999), 99-
07011-AD. Plaintiff has failed to prove that 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.
      {¶12}    In her complaint, plaintiff acknowledged the debris plaintiff’s car struck
was displaced by a third party, another motorist. Defendant has denied liability based
on the particular premise it had no duty to control the conduct of a third person except in
cases where a special relationship exists between defendant and either plaintiff or the
person whose conduct needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin
Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769, Jordan v. Ohio Dept. of
Transp., Dist. 8, Ct. of Cl. No. 2010-01336-AD, 2010-Ohio-4583. However, defendant
may still bear liability if it can be established some act or omission on the part of ODOT
was the proximate cause of plaintiff’s injury.     No evidence has been presented to
establish the damage claimed was proximately caused by any act or omission on the
part of either ODOT or Shelly.
                                 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




TAMARA ROHRER

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION (DISTRICT 6)

        Defendant

         Case No. 2011-01950-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:

Tamara Rohrer                                     Jerry Wray, Director
107 Frankfort Square                              Department of Transportation
Columbus, Ohio 43206                              1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
4/29
Filed 6/1/11
Sent to S.C. reporter 9/12/11
