Healy v. Ohio Dept. of Transp., Dist. 12

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[Cite as Healy v. Ohio Dept. of Transp., Dist. 12 , 2007-Ohio-649.] 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 JENNIFER HEALY Case No. 2006-05110-AD Plaintiff Deputy Clerk Daniel R. Borchert v. MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12 Defendant [Cite as Healy v. Ohio Dept. of Transp., Dist. 12 , 2007-Ohio-649.] FINDINGS OF FACT {¶1} 1) Plaintiff, Jennifer Healy, stated she was traveling west on Interstate 90 from Madison, Ohio to Willoughby Hills, Ohio, through a roadway construction zone when a rock struck and cracked the windshield of her vehicle. Plaintiff related this property damage incident occurred on July 8, 2006, between 12:00 and 1:00 p.m. {¶2} 2) Plaintiff contended, defendant, Department of Transportation ( DOT ), should bear liability for the cost of replacing her windshield. Consequently, plaintiff filed this complaint seeking to recover $451.50, the complete replacement cost of a new windshield. The filing fee was paid. {¶3} 3) Defendant explained the area where plaintiff s damage occurred was located within a construction zone, at about milepost 7.74 on I-90, under the control of DOT contractor, Anthony Allega, Inc. Additionally, defendant denied liability in this matter based on the allegation that neither DOT nor Anthony Allega, Inc. had any knowledge of the debris that struck plaintiff s windshield. {¶4} 4) Plaintiff did not submit any evidence to establish the length of time the rock was on the roadway prior to the July 8, 2006, property damage event. Plaintiff did not produce evidence showing the rock debris emanated from any construction activity. {¶5} 5) Defendant asserted Anthony Allega, Inc., by contractual agreement, was responsible for maintaining the roadway within the construction area. Therefore, DOT argued Anthony Allega, Inc. 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. {¶6} 6) Furthermore, defendant again denied having any notice of the damage-causing debris. Defendant contended plaintiff failed to introduce evidence proving any requisite notice. The claim is devoid of evidence concerning actual or constructive notice of the particular debris by DOT personnel or DOT contractors on July 8, 2006. CONCLUSIONS OF LAW {¶7} 1) The duty of DOT to maintain the road in a safe drivable condition is not delegable to an independent contractor involved in roadway construction. DOT may bear liability for the negligent acts of an independent contractor charged with roadway construction. See Cowell v. Ohio Department of Transportation (2004), 2003-09343-AD, Case No. 2006-05110-AD -3- MEMORANDUM DECISION jud, 2004-Ohio-151. {¶8} 2) Defendant has the duty to maintain its highway 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} 3) In order to recover in any suit involving injury proximately caused by roadway conditions plaintiff must prove either: 1) defendant had actual or constructive notice of the debris and failed to respond in a reasonable time or responded in a negligent manner, or 2) that defendant, in a general sense, maintains its highways negligently. Denis v. Department of Transportation (1976), 75-0287-AD. {¶10} 4) 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. {¶11} 5) Plaintiff has not produced any evidence to indicate the length of time the debris was present on the roadway prior to the incident forming the basis of this claim. No evidence has been submitted to show defendant had actual notice of the debris. Additionally, the trier of fact is precluded from making an inference of defendant s constructive notice, unless evidence is presented in respect to the time the debris appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262. There is no indication defendant had constructive notice of the debris. Plaintiff has not produced any evidence to infer defendant, in a general sense, maintains its highways negligently or that defendant s acts caused the appearance of the debris. Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD. Therefore, defendant is not liable for any damage plaintiff may have suffered from the debris. {¶12} 6) Plaintiff has not shown, by a preponderance of the evidence, that defendant failed to discharge a duty owed to plaintiff, or that plaintiff s injury was proximately caused by defendant s negligence. Plaintiff failed to show that the damage- Case No. 2006-05110-AD -4- MEMORANDUM DECISION causing debris was connected to any conduct under the control of defendant, that defendant was negligent in maintaining the construction area, or that there was any negligence on the part of defendant or its agents. Taylor v. Transportation Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. Consequently, plaintiff s claim is denied. [Cite as Healy v. Ohio Dept. of Transp., Dist. 12 , 2007-Ohio-649.] 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 JENNIFER HEALY Plaintiff Case No. 2006-05110-AD Deputy Clerk Daniel R. Borchert v. OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12 ENTRY OF ADMINISTRATIVE DETERMINATION 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. Court costs are assessed against plaintiff. 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: Jennifer Healy 27645 Bishop Park Dr. #N912 Willoughby Hills, Ohio 44092 Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 12/15 Filed 1/5/07 Sent to S.C. reporter 2/15/07

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