[Cite as Moore v. Ohio Dept. of Transp., 2010-Ohio-6665.]

                                      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




STEPHEN A. MOORE

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-06176-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Stephen A. Moore, filed this action against defendant,
Department of Transportation (ODOT), contending that the windshield on his 2003 Ford
Mustang GT was damaged as a proximate cause of negligence on the part of ODOT in
maintaining a hazardous condition in a roadway construction area on State Route 2 in
Lake County. Plaintiff recalled that he was traveling on State Route 2 on November 9,
2009 at approximately 2:50 p.m., when he approached a truck traveling ahead equipped
with “a dump type trailer used in hauling either dirt or rock.” Plaintiff related that “[a]s I
approached closer to the vehicle I noticed some rock falling off the rear slanted gate of
the trailer (and) I could clearly see that the rocks were falling off the rear tailgate of the
trailer and were not being thrown up onto the road by the rear tires.” Plaintiff asserted
that a rock that fell from the truck traveling ahead bounced from the roadway surface
and struck his car’s windshield. Plaintiff noted that the truck, bearing the name Mid-
America Trucking, pulled off the right side of the roadway “back into the construction
zone where they were working.” Plaintiff recalled that he subsequently contacted a
representative of Mid-America Trucking, Carmen Carbone, and was informed that the
trucking company is a subsidiary of ODOT contractor, Anthony Allega, Inc. (Allega),
who was under the contract to perform the roadway construction work on State Route 2.
Plaintiff pointed that out he was advised by Carmen Carbone that neither Mid-America
Trucking nor Allega were “responsible for any damages from objects falling from their
trucks.” Plaintiff contended that the Mid-America Trucking driver violated a statutory
duty under R.C. 4513.311 to secure loads on the vehicle. Plaintiff submitted a letter
from Carmen Carbone dated November 16, 2009 regarding the November 9, 2009
described incident. In this letter, Carbone wrote: “[w]e have investigated this incident
throughly and determined we (Allega) can not be held responsible for any debris that
may have been in the roadway.” In response, plaintiff filed this claim maintaining that
either ODOT or Allega should bear liability for the replacement cost of his windshield.
Plaintiff requested damages in the amount of $273.97, the total cost of a replacement
windshield. The $25.00 filing fee was paid and plaintiff requested reimbursement of that
cost along with his damage claim.
       {¶ 2} Defendant acknowledged that the area where plaintiff’s stated property
damage event occurred was located within the limits of a working construction project
under the control of ODOT contractor, Anthony Allega Cement Contractor/Great Lakes
Construction (Allega).       Defendant explained that this particular construction project
“dealt with improving SR 2 by grading, draining, paving with asphalt concrete on an
asphalt concrete base in part, paving with reinforced concrete paving in part, noise
barrier, reinforced concrete retaining walls, MSE walls and rehabilitating existing
structures between mileposts 3.32 to 7.75 in Lake County.” Defendant asserted that
Allega, by contractual agreement, was responsible for roadway damage, occurrences,
or mishaps within the construction zone. Therefore, ODOT argued that Allega 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. All work by the contractor was to be performed in accordance with ODOT


       1
          R.C. 4513.31(A) which addressing “Securing loads on vehicles” provides:
        “(A) No vehicle shall be driven or moved on any highway unless the vehicle is so constructed,
loaded, or covered as to prevent any of its load from dropping, sifting, leaking, or otherwise escaping
therefrom, except that sand or other substance may be dropped for the purpose of securing traction, or
water or other substance may be sprinkled on a roadway in cleaning or maintaining the roadway.”
mandated    specifications   and   requirements   and    subject    to   ODOT    approval.
Furthermore, defendant maintained an onsite personnel presence in the construction
project area.
       {¶ 3} 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 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.
       {¶ 4} 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
contention 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.
       {¶ 5} Alternatively, defendant argued that neither ODOT nor Allega had any
knowledge “of rocks flying from their trucks prior to plaintiff’s incident.”    Defendant
related that ODOT “records indicate that no calls or complaints were received regarding
the rocks in question prior to Plaintiff Moore’s incident,” at the location determined ,
milepost 7.10.     Defendant contended that plaintiff failed to produce evidence
establishing his property damage was attributable to either conduct on the part of ODOT
or Allega.
        {¶ 6} Defendant submitted a copy of a “Traffic Crash Report” filed by the Mentor
Police Department incident to plaintiff reporting the damage event on November 9,
2009.    In the “Traffic Crash Report” was a handwritten statement from plaintiff
describing his recollection of the damage incident forming the basis of this claim.
Plaintiff noted that he was traveling west on State Route 2 when he “noticed a truck
enter the highway from the right (berm).” Plaintiff wrote, “[a]s I approached the truck at
approx (imately) 40-45 mph a rock came off the rear slanted gate of the truck, bounded
2-3 times and hit the center of the front window of the car I was driving.” Plaintiff
pointed out that he “noticed that the name on the truck said Mid-America or Mid
American (and he) also noticed a truck # of 126 and trailer # of 120.”
        {¶ 7} Defendant also submitted a copy of an e-mail from Allega representative,
Carmen C. Carbone, regarding his knowledge of plaintiff’s claim after conducting an
investigation of work performed on the construction project on November 9, 2009.
Carbone advised that “[t]he truck alleged to have dropped a rock from its tailgate did not
have a tailgate on the vehicle at that time” (approximately 2:50 p.m.). Carbone noted
that the tailgate on the vehicle had been removed at 11:15 a.m. in order to haul large
slabs of concrete. Neither plaintiff nor defendant provided a photograph of the vehicle
with or without a tailgate attached. Carbone attached a document designated “Mid
America Trucking Daily Report” listing work assignment for truck #126 for November 9,
2009. Under heading for work performed from 6:30 a.m. to 11:15 a.m. is the notation
“concrete pour-gate.” Under the heading for work performed from 11:15 a.m. to 3:15
p.m. is the notation “excavation.”      Carbone expressed the opinion that plaintiff
“exaggerated” the facts of this claim. Carbone did confirm truck #126 was hauling large
slabs of concrete on State Route 2 at approximately 2:50 p.m. on November 9, 2009.
        {¶ 8} Defendant submitted a handwritten statement from the driver of truck
#126, William A. Kloczko.     Kloczko advised that the gate on truck #126 had been
removed at 11:15 a.m. on November 9, 2009. Kloczko did not address the assertions
that he was driving truck #126 hauling material on State Route 2 at approximately 2:50
p.m. on November 9, 2009.
       {¶ 9} Generally, 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
incident.   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. 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. Plaintiff, in
the instant claim, has alleged that the damage to his vehicle was directly caused by
activity of ODOT’s contractor on November 9, 2009 in failing to adequately secure
roadway construction material being hauled on the roadway.
       {¶ 10} Defendant may bear liability if it can be established if some act or
omission on the part of ODOT or its agents was the proximate cause of plaintiff’s injury.
This court, as the 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.
       {¶ 11} “If an injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in light of all the attending circumstances,
the injury is then the proximate result of 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.
       {¶ 12} 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.
      {¶ 13} 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 the origin of the damage-causing debris
are persuasive. McTear v. Ohio Dept. of Transp., Dist. 12, Ct. of Cl. No. 2008-09139-
AD, 2008-Ohio-7118. Defendant is liable to plaintiff for the damage claimed, $273.97,
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




STEPHEN A. MOORE

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-06176-AD

Clerk Miles C. Durfey


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 $298.97, which includes the filing fee. Court costs are
assessed against defendant.




                                           MILES C. DURFEY
                                           Clerk

Entry cc:

Stephen A. Moore                           Jolene M. Molitoris, Director
12110 Summerwood Drive                     Department of Transportation
Concord, Ohio 44077                        1980 West Broad Street
                                           Columbus, Ohio 43223
RDK/laa
9/30
Filed 11/2/10
Sent to S.C. reporter 2/11/11
