Thompson v. Ohio Dept. of Transp.
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[Cite as Thompson v. Ohio Dept. of Transp., 2004-Ohio-7298.]
IN THE COURT OF CLAIMS OF OHIO
JOSEPH V. THOMPSON, et al.
:
Plaintiffs
:
v.
CASE NO. 2003-07154
Magistrate Anderson M. Renick
:
MAGISTRATE DECISION
OHIO DEPARTMENT OF
TRANSPORTATION
:
:
Defendant
: : : : : : : : : : : : : : : : :
{¶ 1} Plaintiffs brought this action against defendant alleging
a claim of negligence.1
The issues of liability and damages were
bifurcated and the case was tried to a magistrate of the court on
the issue of liability.
{¶ 2} On August 11, 2002, at approximately 3:00 p.m., plaintiff
Joseph Thompson was operating his motorcycle west on State Route
(SR) 646, a two-lane divided highway, in Harrison County, Ohio.
His wife, plaintiff Kimberly Thompson, was riding as a passenger.
The road was dry and the weather was clear.
When Thompson
approached a curve in the road, he encountered gravel near the
outer edge of the asphalt roadway adjacent to the berm, causing him
to lose control.
Plaintiffs were thrown from the motorcycle when
it veered off the right side of the roadway and continued into a
ditch that ran parallel to the road.
1
Defendant has filed a counterclaim against plaintiff, Joseph Thompson, alleging
contribution.
Case No. 2003-07154
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MAGISTRATE DECISION
{¶ 3} In order for plaintiffs to prevail upon their claim of
negligence, they must prove by a preponderance of the evidence that
defendant owed them a duty, that it breached that duty, and that
the
breach
proximately
caused
their
injuries.
Hutchinson (1981), 67 Ohio St.2d 282, 285.
Strother
v.
As a general rule,
defendant has a duty to maintain its highways in a reasonably safe
condition for the motoring public.
Knickel v. Ohio Dept. of
Transportation (1976), 49 Ohio App.2d 335.
See, also, Rhodus v.
Ohio Dept. of Transportation (1990), 67 Ohio App.3d 723.
However,
defendant is not an insurer of the safety of state highways.
Rhodus, supra, at 730.
defendant
for
plaintiffs
damages
must
In order for liability to attach to
caused
demonstrate
by
hazards
that
upon
defendant
had
constructive notice of the existence of such hazard.
v.
Ohio
Dept.
of
Transportation
(1986),
34
the
Ohio
roadway,
actual
or
See McClellan
App.3d
247;
Knickel, supra; Pearson v. Ohio Dept. of Transportation (Nov. 6,
1997), Court of Claims No. 96-06773.
{¶ 4} Plaintiffs contend that defendant breached its duty of
care by leaving an excessive amount of gravel in the roadway,
thereby creating a hazard to motorists.
Joseph Thompson testified
that he saw the loose gravel on the roadway seconds before he drove
over it and lost control.
He also testified that he had not
encountered gravel on that area of the road before.
According to
Thompson, SR 646 was generally well-maintained, but occasionally
had patches of loose gravel.
Thompson testified that he would not
ride his motorcycle on SR 646 after a rainstorm because he had
observed gravel on other areas of the roadway following a storm.
Thompson further testified that it had rained approximately two to
three days prior to the incident.
Case No. 2003-07154
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MAGISTRATE DECISION
{¶ 5} The incident was witnessed by David Wright, a motorist who
was
following
plaintiffs.
Wright
testified
that
he
became
frustrated and “backed off” because he estimated that plaintiffs
were traveling at only 35 to 40 miles per hour.
Although Wright
could not recall the road condition at the time of the incident, he
recalled seeing a “ball of dust” before plaintiffs’ motorcycle left
the roadway.
{¶ 6} Defendant contends that plaintiffs have not established
that loose gravel caused the accident.
The court notes that Joseph
Thompson testified that the gravel he gathered and offered as
evidence
was
accident.
collected
from
Nevertheless,
the
SR
646
court
several
finds
weeks
the
after
testimony
plaintiffs regarding the loose gravel to be credible.
the
of
Kimberly
Thompson testified that just prior to the accident, her husband
advised her to “hang onto him tight” because there was a patch of
gravel.
Additionally, the court finds that the testimony of David
Wright was consistent with Joseph Thompson’s explanation that he
lost control of his motorcycle when its tires skidded on loose
gravel.
However, even assuming that loose gravel at the site of
the incident was a danger to motorists, plaintiffs must also
establish that defendant had notice of such a hazard.
{¶ 7} Plaintiffs contend that defendant was aware of loose
gravel on SR 646 and that it used liquid asphalt to prevent gravel
from washing onto the roadway.
{¶ 8} With regard to notice, Mark Davis, defendant’s Roadway
Services Manager for District 11, testified that he was responsible
for supervising all maintenance on SR 646.
Davis testified that he
had reviewed defendant’s records for similar accidents in the
vicinity of the incident and that he found no public complaints
Case No. 2003-07154
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MAGISTRATE DECISION
concerning gravel or debris.
Davis also testified that defendant
had no record of maintenance actions taken to remove gravel or
debris from the highway.
{¶ 9} With regard to shoulder maintenance, Davis testified that
defendant had always “backed up” highway shoulders by applying
aggregate material at the edge of the roadway and compacting the
aggregate by running over it with the truck’s tires.
Davis
explained that defendant began to use liquid asphalt to cover the
aggregate some time after the incident to strengthen the berm
material and to prevent heavier vehicles from “dropping through”
the shoulder.
Davis emphasized that defendant’s use of asphalt was
not prompted by any concern that loose aggregate material was
drifting onto the roadway.
Davis reviewed plaintiffs’ photographs
that were taken in January 2004 and testified that the surface
debris depicted in the photos was most likely a “50/50 mix of salt
and grits” that is used to prevent icing.
(Plaintiffs’ Exhibit 2A-
2D.)
{¶ 10}
Although plaintiffs contend that defendant was aware of
gravel on the roadway, Davis’ testimony established that defendant
had not received any complaints regarding debris on the roadway in
the vicinity of the accident.
roadway
Thompson
was
generally
testified
that
Even plaintiffs agreed that the
well-maintained.
he
had
traveled
Furthermore,
through
the
Joseph
area
in
question many times over a 30-year period and that he had not
previously noticed any gravel near the curve where the accident
occurred.
Based upon the testimony and evidence, the court finds
that plaintiffs have failed to prove by a preponderance of the
evidence that defendant had either actual or constructive notice of
any defect on SR 646 in the area where the incident occurred.
Case No. 2003-07154
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MAGISTRATE DECISION
Therefore, defendant cannot be held liable for any damages that
plaintiffs allege were caused by a dangerous highway condition.
{¶ 11}
is
Moreover, even if defendant were negligent, the court
convinced
that
Joseph
Thompson’s
own
negligent
conduct
proximately contributed to the cause of plaintiffs’ injuries under
the circumstances of this case.
Although plaintiffs assert that
the gravel on the highway was the sole cause of the accident, the
court finds that Thompson’s negligence in failing to maintain
reasonable control of his motorcycle was greater than defendant’s
negligence.
Consequently, plaintiffs are barred from recovery by
operation of Ohio’s comparative negligence statute.
See R.C.
2315.19.2
{¶ 12}
Upon review, the court finds that plaintiffs failed to
prove by a preponderance of the evidence that defendant’s actions
or inactions under the circumstances of this case give rise to
liability for the injuries sustained by plaintiffs.
Accordingly,
judgment is recommended in favor of defendant as to plaintiffs’
complaint.
It is recommended that defendant’s counterclaim be
dismissed.
{¶ 13}
A party may file written objections to the magistrate’s
decision within 14 days of the filing of the decision.
A party
shall not assign as error on appeal the court’s adoption of any
finding or conclusion of law contained in the magistrate’s decision
unless the party timely and specifically objects to that finding or
conclusion as required by Civ.R. 53(E)(3).
2
R.C. 2315.19 was repealed effective April 9, 2003; however, the statute applies
to causes of action that accrued before its repeal.
Case No. 2003-07154
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MAGISTRATE DECISION
________________________________
ANDERSON M. RENICK
Magistrate
Entry cc:
Joseph V. Thompson
Kimberly L. Thompson
553 Lincoln Blvd.
Steubenville, Ohio 43952
Plaintiffs, Pro se
William C. Becker
Assistant Attorney General
150 East Gay Street, 23rd Floor
Columbus, Ohio 43215-3130
Attorney for Defendant
AMR/cmd
Filed December 8, 2004
To S.C. reporter January 11, 2005
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