Kucera v. Ohio Dept. of Transp.

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[Cite as Kucera v. Ohio Dept. of Transp., 2006-Ohio-7145.] IN THE COURT OF CLAIMS OF OHIO JOHN C. KUCERA : Plaintiff : v. : CASE NO. 2005-09511-AD OHIO DEPARTMENT OF TRANSPORTATION : MEMORANDUM DECISION : Defendant : : : : : : : : : : : : : : : : : {¶ 1} Plaintiff, John C. Kucera, stated he was traveling on Interstate 90 through a construction zone on July 19, 2005, at approximately 6:00 a.m., when his truck was pelted with rocklike debris propelled into the path of his vehicle by passing motorists. Plaintiff pointed out the road construction crew, did not clean the rocks from the road, causing cars and trucks to throw rocks on othe[r] vehicles. The particular section of Interstate 90 where plaintiff was traveling had recently been milled in preparation for repaving. In fact, the construction workers who had milled this portion of Interstate 90 in Lake County were on the scene at the time of plaintiff s incident. Plaintiff related the windshield and driver s-side window of his truck were cracked as a result of being struck aggregate debris left on the milled roadway surface. with the Plaintiff did not stop and report the property damage event immediately after the incident. {¶ 2} Plaintiff contended defendant, Department of Transportation ( DOT ), should bear liability for the cost of repairing his windshield. Consequently, plaintiff filed this complaint repair. submit seeking to recover $420.00, the cost Plaintiff submitted the filing fee. any other information regarding of vehicle Plaintiff did not the July 19, 2005, property damage event. {¶ 3} Defendant acknowledged the area where plaintiff s damage event occurred was located within a construction zone where the roadway had recently been milled in preparation for resurfacing. Defendant explained this roadway construction zone was under the control of DOT contractor, The Shelly Company ( Shelly ). Defendant asserted DOT s Project Engineer, Kevin King, was not aware of any particular problem with roadway debris created by Shelly s milling of the roadway surface. Defendant maintained King, on would have addressed any problem the Daily Diary Report for this project if he had noticed pervasive debris or was notified existence. Shelly by either the public or inspectors of its Defendant observed the milled roadway was swept by before being opened to traffic. Shelly utilized a mechanical sweeping device during the early morning hours of July 19, 2005. DOT insisted the milling operation itself along with the removal of the milled particulate was conducted with due care to protect the motoring public from arising hazardous conditions. {¶ 4} Pursuing an argument promoted in numerous claims, defendant has contended DOT has no responsibility for damage incidents occurring in a construction zone under the control of a contractor. Defendant asserted Shelly, by contractual agreement, was responsible for maintaining the roadway within the construction area. Therefore, DOT argued Shelly 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 roadway section. safe drivable contractor takes control over a particular The duty of DOT to maintain the roadway in a condition involved in is not roadway delegable to an construction. independent 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, jud, 2004Ohio-151. Furthermore, despite defendant s contentions that DOT did not owe any duty in regard to the construction project, defendant was charged with a duty to inspect the construction site and correct any known deficiencies particular construction work. in connection with See Roadway Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119, 2001 Ohio App. LEXIS 2854. {¶ 5} Alternatively, defendant denied neither DOT nor Shelly had notice of any milling debris left on Interstate 90 after milling and clean up attempts had been conducted on August 9, 2005. Defendant professed liability cannot be established when requisite notice of damage-causing debris conditions cannot be proven. Generally, conditions Bussard However, necessary of v. which Dept. proof when of defendant it of has defendant s only notice, Transp. notice is of own for roadway correct. but fails to 31 Ohio Misc. (1986), a liable dangerous agents condition actively 2d is cause 1. not such condition, as appears to be the situation in the instant matter. See Bello v. City of Cleveland (1922), 106 Ohio St. 94, at paragraph one of the syllabus; Sexton Transportation (1996), 94-13861. v. Ohio Department of A Shelly representative noted the roadway was swept, milled, and swept a second time before being opened to traffic. The construction site was maintained in accordance with DOT specifications for milling and sweeping the roadway. {¶ 6} 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 highways. is not an insurer of the safety of its See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723. {¶ 7} 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 DOT acted in a manner to render the highway free from an unreasonable risk of harm for the traveling public. Feichtner (1995), 114 Ohio App. 3d 346. v. Ohio Dept. of Transp. In fact the duty to render the highway free from unreasonable risk of harm is the precise duty owed by DOT to the traveling public under both normal traffic conditions and during highway construction projects. See e.g. White v. Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, 42. Plaintiff, in the instant claim, has failed to prove defendant or its agents property damage. breached any duty of care which resulted in From evidence produced plaintiff has failed to prove his damage was proximately caused by any negligent act or omission on the part of DOT or its agents. IN THE COURT OF CLAIMS OF OHIO JOHN C. KUCERA : Plaintiff : v. : CASE NO. 2005-09511-AD OHIO DEPARTMENT OF TRANSPORTATION : ENTRY OF ADMINISTRATIVE DETERMINATION : Defendant : : : : : : : : : : : : : : : : : Having considered all the evidence in the claim file and, for the reasons concurrently defendant. set forth herewith, in the judgment is memorandum rendered decision in filed favor Court costs are assessed against plaintiff. of 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: John C. Kucera 404 Oleander Oval Madison, Ohio 44057 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant DRB/RDK/laa 2/23 Filed 3/17/06 Sent to S.C. reporter 4/7/06

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