[Cite as Combs v. Ohio Dept. of Transp., 2010-Ohio-3148.]
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
STEPHANIE COMBS
Plaintiff
v.
OHIO DEPT. OF TRANS.
Defendant
Case No. 2009-08756-AD
Clerk Miles C. Durfey
MEMORANDUM DECISION
{¶ 1} Plaintiff, Stephanie Combs, filed this action contending that her 2005
Chevrolet Uplander truck was damaged on August 10, 2009 as a proximate cause of
negligence on the part of defendant, Department of Transportation (ODOT), in
maintaining a construction area on Kemper Road in Hamilton County. Specifically,
plaintiff related that the running boards on her truck were “crushed” and became
detached from scraping on the curb area at the entrance/exit to her place of
employment (Valley Asphalt) which abuts Kemper Road. Plaintiff explained that “[t]he
curb at this location was too high and damaged (the) running boards on my vehicle
when I was leaving for lunch.” Plaintiff submitted photographs depicting the roadway
construction area on Kemper Road at the entrance to Valley Asphalt. Additional
submitted photographs depict plaintiff’s vehicle stopped at the entrance/exit of Valley
Asphalt at Kemper Road. The photographs show an area of Kemper Road where the
roadway surface has been milled in preparation for repaving. The milled portion of
Kemper Road abuts an unmilled area of roadway surface over two feet wide that runs
the length of Kemper Road. Concrete curbing perhaps six inches wide separates and
spans the unmilled portion of Kemper Road at the entrance/exit to Valley Asphalt. The
curbed area is raised approximately one inch from the unmilled portion of Kemper Road
and as much as two inches above the paved area at the entrance/exit to Valley Asphalt.
The submitted photographs of the Chevrolet Uplander show the vehicle stopped at the
driveway approach to Valley Asphalt from Kemper Road. The back end of plaintiff’s
vehicle is positioned on Kemper Road, with the middle and front of the vehicle parked
across the raised area at the Valley Asphalt driveway approach. The photographs show
the left side running board of plaintiff’s Chevrolet Uplander contacting with the raised
roadway surface abutting the Valley Asphalt driveway approach. The running board on
the vehicle appears to be intact.
{¶ 2} Plaintiff asserted that the driveway approach at Valley Asphalt was
rendered unsafe for vehicle traffic as a result of the milling operation conducted on
Kemper Road. Plaintiff claimed that the difference in roadway surface elevation
between the milled roadway and the intact driveway approach caused the running
boards on the Chevrolet Uplander to be “crushed” and “came unattached.” Plaintiff
related that the running boards “have to be replaced because they were ripped off the
brackets.” In her complaint, plaintiff contended that her vehicle was damaged as a
result of ODOT negligence in failing to correct the dangerous condition created by
milling the surface on Kemper Road and leaving the driveway approach from Kemper
Road to Valley Asphalt intact. Consequently, plaintiff filed this action requesting
damages in the amount of $953.16, the stated cost of replacing the running boards on
her vehicle. Plaintiff submitted an invoice showing that she had running boards installed
on her Chevrolet Uplander on March 11, 2008, at a cost of $953.16. The $25.00 filing
fee was paid and plaintiff requested reimbursement of that cost along with the damage
claim.
{¶ 3} Defendant acknowledged that the area where plaintiff’s stated property
damage event occurred was located within the limits of a construction project under the
control of ODOT contractor, Kokosing Construction Company, Inc. (Kokosing).
Defendant explained that the particular construction project, “dealt with grading,
draining, paving in part with concrete pavement and warranty asphalt pavement” as well
as “[w]idening ramps at Kemper Road and Mostellar Road and installing a three sided
culvert and existing culvert in Hamilton County.” Defendant advised that “[p]laintiff’s
incident on Kemper Road places her near milepost 26.45, which is within the project
limits.” Defendant asserted that Kokosing, by contractual agreement, was responsible
for roadway damage, occurrences, or mishaps within the construction zone. Therefore,
ODOT argued that Kokosing 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. Furthermore, defendant maintained an onsite personnel presence in
the construction project area.
{¶ 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
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.
{¶ 6} Alternatively, defendant argued that neither ODOT nor Kokosing had any
knowledge of “the driveway on Kemper Rd. prior to plaintiff’s incident.” Defendant
pointed out that ODOT “records (copies submitted) indicate that no calls or complaints
were received at the Hamilton County Garage regarding the driveway in question prior
to her (plaintiff’s) incident.” Defendant contended that plaintiff failed to produce
evidence establishing her property damage was attributable to either conduct on the
part of ODOT or Kokosing.
{¶ 7} Both plaintiff and defendant submitted a letter from Kokosing Claims
Specialist, Pamela J. LeBlanc, regarding work performed on the construction project,
specifically the driveway approach area where plaintiff’s damage occurred. LeBlanc
wrote that according to Project Engineer, Vince Martini, “the roadway and driveway
approach were built according to Plan.”
{¶ 8} Additionally, defendant submitted a copy of an e-mail from ODOT
Resident Engineer, Dennis Stemler, referencing the work performed on Kemper Road
at the Valley Asphalt driveway approach. Stemler noted the following observations:
{¶ 9} “1. There is only 1 ½ inch depression coming into the dropped curb. The
change in slope from roadway to driveway is according to the plans.
{¶ 10} “2. The project has been in discussion with Jim Crawford and JRJ
because there were issues with their long drags having problems in this same area for
at least two months. There are two other exits from JRJ/Valley office to get in and out.
There were never any issues with car/vans getting in and out of the drive.
{¶ 11} “3. The vehicle involved sits low to the ground and apparently has low
profile tires. This is based upon the attached pictures. The distance from the running
boards to the ground should be checked to see if it is legal distance as well.”
{¶ 12} Plaintiff filed a response specifically denying defendant’s assertions that
her 2005 Chevrolet Uplander has “low profile tires (and) ground effects.” Plaintiff
explained that the running boards on her vehicle are positioned approximately six
inches above “the ground.” Plaintiff maintained that the running boards installed on her
vehicle were positioned at the same height as factory installed running boards.
{¶ 13} 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 her vehicle was directly caused by
construction activity of ODOT’s contractor prior to August 10, 2009. Additionally,
plaintiff submitted photographic evidence depicting the uneven pavement condition and
surface deviation between the edge of the driveway approach and the milled portion of
Kemper Road. No evidence was submitted to establish when the roadway surface near
milepost 26.45 on Kemper Road was initially milled prior to August 10, 2009.
{¶ 14} “If an 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. 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.
{¶ 15} 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
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 provided sufficient evidence to prove that a known hazardous condition existed on
the roadway after ODOT specified operations were completed and that neither ODOT
nor its agents timely corrected the condition. Plaintiff has proven her damage was
proximately caused by negligent acts and omissions on the part of ODOT onsite
personnel and ODOT’s agents. See Costello v. Ohio Dept. of Transp. (2009), 2009-
06052-AD. Therefore, defendant is liable to plaintiff in the amount of $953.16, the total
cost of automotive repair, plus the $25.00 filing fee, which may be awarded as 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
STEPHANIE COMBS
Plaintiff
v.
OHIO DEPT. OF TRANS.
Defendant
Case No. 2009-08756-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 $978.16, which includes the filing fee. Court costs are
assessed against defendant.
MILES C. DURFEY
Clerk
Entry cc:
Stephanie Combs Jolene M. Molitoris, Director
6650 Springdale Road Department of Transportation
Cincinnati, Ohio 45247 1980 West Broad Street
Columbus, Ohio 43223
RDK/laa
2/25
Filed 3/12/10
Sent to S.C. reporter 7/1/10