[Cite as Albanese v. Ohio Dept. of Transp., 2009-Ohio-7144.]

                                      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




PETER ALBANESE

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-05552-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Peter Albanese, filed this action against defendant, Department of
Transportation (ODOT), alleging the windshield on his automobile was damaged while
traveling through a construction zone on Interstate 90 in Lake County. Plaintiff recalled
his damage incident occurred at approximately 7:00 a.m. on May 5, 2009. Plaintiff
described the damage event noting: “a rock came up from the highway (Interstate 90
Westbound) and struck my windshield causing it to chip.” Plaintiff asserted rock debris
were left on the roadway after defendant’s contractor, The Shelly Company (Shelly),
had milled the roadway pavement the night before in preparation for repaving. Plaintiff
related “[t]here was debris flying everywhere that morning since the highway was just
opened at approx 6 am.” Plaintiff seeks damages in the amount of $300.00, the stated
cost of a replacement windshield. The filing fee was paid.
        {¶ 2} Defendant acknowledged that the area where plaintiff’s described damage
event occurred was located within the limits of a construction project under the control
of ODOT contractor Shelly.             Defendant explained the particular project “dealt with
grading, planning and resurfacing with asphalt concrete on I-90 between county
mileposts 1.88 to 7.80 in Lake County.” Defendant asserted that Shelly, by contractual
agreement, was responsible for any roadway damage occurrences or mishaps within
the construction zone.     Therefore, ODOT argued that Shelly is the proper party
defendant in this action. Defendant implied 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 mandated
specifications and requirements and subject to ODOT approval.
      {¶ 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, 788 N.E. 2d 1088, ¶8 citing
Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 79, 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 Shelly had any
knowledge “of debris flying around from the traffic on I-90" prior to plaintiff’s described
damage occurrence.      ODOT records indicate no calls or complaints were received
regarding debris left on the roadway from milling prior to plaintiff’s incident. Defendant
contended plaintiff failed to produce evidence establishing that his property damage
was attributable to any conduct on either the part of ODOT or Shelly. ODOT records
(copies submitted) show milling operations were conducted on Interstate 90 West
during the early morning hours of May 5, 2009. Both ODOT and Shelly records (copies
submitted) indicate the milled roadway was swept of debris by a Shelly sub-contractor,
ending at 3:45 a.m. on May 5, 2009. Shelly insisted the milling operation and follow-up
sweeping operation were performed in compliance with ODOT specifications.
      {¶ 6} 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
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. 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
construction activity of ODOT’s contractor prior to May 5, 2009.
      {¶ 7} “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 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.
      {¶ 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 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. Plaintiff has failed to
prove his 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.




                               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




PETER ALBANESE

      Plaintiff

      v.
OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2009-05552-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:

Peter Albanese                                    Jolene M. Molitoris, Director
9624 LaSalle Lane                                 Department of Transportation
Mentor, Ohio 44060                                1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
10/2
Filed 10/20/09
Sent to S.C. reporter 2/12/10
