Vanderson v. Ohio Dept. of Transp.

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[Cite as Vanderson v. Ohio Dept. of Transp., 2006-Ohio-7163.] IN THE COURT OF CLAIMS OF OHIO DARRELL VANDERSON : Plaintiff : v. : CASE NO. 2005-09961-AD OHIO DEPT. OF TRANSPORTATION : MEMORANDUM DECISION Defendant : : : : : : : : : : : : : : : : : : {¶ 1} Plaintiff, Darrell Vanderson, asserted he suffered property damage to the windshield of his truck while driving through a roadway construction area on August 9, 2005, at about 7:00 a.m. Plaintiff related he was traveling on Interstate 90 in Lake County on a roadway area that had been, freshly grated the previous repaving. night, or According that to morning, plaintiff, in as preparation he was for traveling, approximately 2 miles from Vrooman Rd, a large piece of asphalt hit my windshield. This asphalt debris was presumedly left on the roadway when the road surface was milled in preparation for repaving. It propelled into is the further path presumed of the plaintiff s asphalt truck by debris a was passing motorist. {¶ 2} Plaintiff contended defendant, Department of Transportation ( DOT ), should bear liability for the cost of repairing his windshield. complaint repair. seeking to Consequently, plaintiff filed this recover $308.21, the cost of vehicle The filing fee was paid and plaintiff seeks recovery of that amount as part of his damage claim. {¶ 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 August 9, 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 proper party defendant in this action. argued Shelly is the 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 roadway section. safe drivable contractor 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. {¶ 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, of v. Dept. proof necessary conditions. which when it of of defendant 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 See Bello v. City of Cleveland (1922), 106 Ohio St. 94, at paragraph one of the syllabus; Sexton v. Department of Transportation (1996), 94-13861. In the instant claim, evidence is inconclusive regarding the origin of the debris which damaged plaintiff s vehicle. Defendant asserted the milled roadway surface was, regularly swept and appeared visually free from debris. The road was swept, scraped, and swept again before being opened to traffic. {¶ 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 Evidence available does not prove plaintiff s 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 DARRELL VANDERSON : Plaintiff : v. : CASE NO. 2005-09961-AD OHIO DEPT. 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: Darrell Vanderson 8221 Sanborn Road Ashtabula, Ohio 44004 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 3/22 Filed 4/5/06 Sent to S.C. reporter 5/4/06

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