Jones v. Ohio Dept. of Transp.
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[Cite as Jones v. Ohio Dept. of Transp., 2005-Ohio-1399.] IN THE COURT OF CLAIMS OF OHIO RUSSELL R. JONES : Plaintiff : v. : CASE NO. 2004-10949-AD : MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION : Defendant : : : : : : : : : : : : : : : : : {¶ 1} On December 2, 2004, at approximately 9:45 a.m., plaintiff, Russell R. Jones, was traveling north on US Route 127 in Mercer County when his truck drove over a freshly painted white roadway edge line. The wet white paint apparently adhered to the wheel well and right side areas of plaintiff s vehicle, sticking to these areas like mud. Plaintiff located the incident on US Route 127, Route north of State 219 near Celina Ohio. Plaintiff submitted a repair estimate for the cost of removing the caked paint from his truck. $1,123.50. The cost of paint removal amounts to Plaintiff suggested defendant, Department of Transportation ( DOT ), should be responsible for his vehicle repair costs since DOT personnel painted the roadway edge lines on US Route 127 on December 2, 2004. Plaintiff filed this complaint seeking to recover the cost of paint removal. The $25.00 filing fee was paid. {¶ 2} Defendant acknowledged DOT crews conducted edge line painting operations on US Route 127 in Mercer County during the daylight morning hours of December 2, 2004. denied any liability in this matter. However, defendant Defendant insisted precautions activity. were taken to notify motorists of the painting According to defendant, the painting operation consisted of applying a solid white painted edge line on the shoulder area of the roadway surface. The painting was described as a, moving work zone, which complied with directives outlined in the Manual of Traffic Control for Construction and Maintenance Operations for that type of operation. Defendant explained the equipment used for the painting included a lead paint truck, a paint striper, and a follow truck. Other evidence indicates the operation consisted of a paint striper truck and two follow pick-up trucks. involved were equipped with Wet Paint signs. All trucks Additionally, defendant maintained Wet Pant signs and traffic control cones were positioned throughout the painting area to notify motorists of this activity on US Route 127. Defendant insisted all required equipment and signage were in place to perform the December 2, 2004 edge line painting. {¶ 3} Defendant submitted a written statement from DOT employee C. Dean Renner, who supervised the December 2, 2004, painting operation on US Route 127. Renner noted the painting operation consisted of a paint striper truck and two other pickup trucks. According to Renner, the striper was equipped with two wet paint signs and arrows pointing to the white edge line. Renner also recollected the follow pickup trucks were equipped with wet paint signs and strobe lights. Renner wrote, [t]he first pickup truck was following 500' to 1000' feet behind striper put out wet paint signs at every intersection and curves, with orange cones also set out between each intersection, the second pickup waited back at Young Rd. on US-127 and waited till the paint was dry then picked up the wet paint signs and the cone as the paint dried. {¶ 4} Defendant asserted adequate warning was provided motorists of the December 2, 2004, painting activity. to Defendant denied breaching any duty of care owed to plaintiff in conducting the edge line painting. Defendant contended plaintiff failed to produce sufficient evidence to establish his property damage was proximately caused by any negligent act or omission on the part of DOT personnel. {¶ 5} Plaintiff insisted his truck was damaged as a proximate result of defendant s negligence. Plaintiff maintained he did not observe any signs, traffic cones, or follow pickup trucks notifying him of the painting operation. Plaintiff asserted the only traffic control device he noticed was a lead truck followed by extensive traffic. were Plaintiff stated, [t]he paint striper and follow truck nowhere to be seen by following traffic. Therefore, plaintiff surmised defendant failed to adequately warn motorists of the edge line painting. {¶ 6} Plaintiff also disputed Dean Renner s statement regarding stationary traffic cones and signs. see any signs or traffic cones.1 Plaintiff stated he did not Plaintiff concluded the cones and signs were never in place or not placed at proper locations or they were picked up before the paint was dry. Furthermore, plaintiff disputed Renner s statement in regard to the location of the painting. Renner recollected edge lines were painted from Young Rd. 9.74 m.m. to Celina Corp. 12.58. Plaintiff recalled he had already traveled over wet paint before he reached Younger Road.2 Plaintiff additionally recalled he observed white line sprayed in the side ditch just north of State Route 219. (Far south of where Mr. Renner claims to have started.) 1 2 Plaintiff filed a response on February 14, 2005. Plaintiff pointed out Younger Road not Young Road documentary evidence shows edge December 2, 2004, from milepost the correct identification of the roadway is as referenced by Dean Renner. Defendant s line painting was performed on US Route 127 on 9.74 to milepost 12.58. {¶ 7} Finally, plaintiff contended defendant was negligent in failing to leave signs and cones in place long enough for paint to dry before removing these warning devices. Plaintiff contended signs and cones, if they were utilized, were removed before edge line paint dried. Plaintiff submitted evidence showing weather conditions in Mercer County on December 2, 2004, at 8:00 a.m. were cloudy with a temperature of 29 degrees. the day reached 46 degrees. The high temperature for Based on this information, plaintiff speculated DOT personnel may have prematurely removed any warning devices before edge line paint had time to dry under the described weather conditions. Plaintiff professed he heeded all traffic control and warning signs he observed on December 2, 2004. {¶ 8} 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. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723. {¶ 9} Plaintiff has the burden of proof to show his property damage was the direct result of failure of defendant s agents to exercise ordinary care in conducting roadway painting operations. Brake v. Ohio Department of Transportation (2000), 99-12545-AD. A failure to exercise ordinary care may be shown in situations where motorists do not receive adequate or effective advisement of painting activity. DOT See Hosmer v. Ohio Department of Transportation (2003), 2002-08301-AD, 2003-Ohio-1921. In the instant claim, plaintiff and defendant disagree about the posting of signs and markers. Plaintiff stated he did not believe there were any markers in place to make him aware of wet paint on the roadway. Defendant asserted stationary cones and Wet Paint signs were in position to advise motorists of the roadway painting. Defendant also maintained the DOT vehicles involved in the painting project displayed Wet Paint signs as further warning of the activity to passing motorists. {¶ 10} Defendant and plaintiff are also in conflict regarding the actual location of the US Route 127 painting operations. The best evidence shows the painting operation ran from milepost 9.74 to milepost 12.58. Plaintiff asserted he encountered wet paint before reaching milepost 9.74. {¶ 11} 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, paragraph one of the syllabus. The court is free to believe or disbelieve, all or any part of each witness s testimony. State v. Anthill (1964), 176 Ohio St. 61. {¶ 12} After reviewing all evidence presented, the court finds, plaintiff has failed to prove his property damage was caused by any negligent act or omission on the part of defendant s agents. Conversely, evidence directs the court to conclude plaintiff s own negligent driving was the cause of his property damage. Therefore, this claim is denied. IN THE COURT OF CLAIMS OF OHIO RUSSELL R. JONES : Plaintiff : v. : CASE NO. 2004-10949-AD : ENTRY OF ADMINISTRATIVE DETERMINATION OHIO DEPARTMENT OF TRANSPORTATION : Defendant : : : : : : : : : : : : : : : : : 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. are assessed against plaintiff. Court costs The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal. ________________________________ DANIEL R. BORCHERT Deputy Clerk Entry cc: Russell R. Jones 807 N. Parkview Drive Coldwater, Ohio 45828 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 3/1 Filed 3/16/05 Sent to S.C. reporter 3/25/05
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