Ferguson v. Ohio Dept. of Transp.

[Cite as Ferguson v. Ohio Dept. of Transp., 2011-Ohio-7065.] 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 SHEILA FERGUSON Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2011-09535-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION {¶1} On July 6, 2011, at approximately 5:45 a.m., plaintiff, Sheila Ferguson, was traveling north on Interstate 77 when “between Grant & Harvard a orange barrel rolled out into the highway.” Plaintiff related, “[t]he barrel hit the driver side of the car & caused damage to the bumper & fog light & fender.” Plaintiff implied the damage to her van 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 damages in the amount of $1,475.95, the estimated cost of vehicle repair. The filing fee was paid. {¶2} Defendant located plaintiff’s incident “between mileposts 11.43 and 12.12 on I-77 in Cuyahoga County.” 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, Karvo Paving Company (Karvo). According to defendant, the construction project “started at milepost 8.46 and ended at milepost 14.34” on Interstate 77. Thus, plaintiff’s damage event was located within the project limits. Defendant asserted that this particular construction project was under the control of Karvo and consequently ODOT had no responsibility for any damage or mishap on the roadway within the construction project limits. Defendant argued that Karvo, by contractual agreement, was responsible for maintaining the roadway within the construction zone. Therefore, ODOT contended that Karvo is the proper party defendant in this action. {¶3} 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. {¶6} 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. {¶7} Defendant denied that either ODOT or Karvo had any notice of construction barrels rolling in the highway on I-77 prior to plaintiff’s property-damage event. Defendant advised that no calls or complaints were received from other motorists regarding a displaced barrel despite the fact that the particular section of Interstate 77 “has an average daily traffic count between 42,600 and 77,270 vehicles.” Defendant contended plaintiff failed to offer any evidence to establish her damage was attributable to any conduct on either the part of ODOT or Karvo. Defendant further contended plaintiff failed to produce any evidence to prove the construction area was negligently maintained. {¶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. There is no evidence to show that any construction activity caused the barrel to be displaced. 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. 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 SHEILA FERGUSON Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2011-09535-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: Sheila Ferguson Jerry Wray, Director 32857 So. Roundhead Drive Department of Transportation Solon, Ohio 43139 1980 West Broad Street Columbus, Ohio 43223 SJM/laa 11/3 Filed 11/9/11 Sent to S.C. reporter 4/5/12