Sandow v. Ohio Dept. of Transp.

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[Cite as Sandow v. Ohio Dept. of Transp., 2006-Ohio-7134.] IN THE COURT OF CLAIMS OF OHIO FABIANA SANDOW : Plaintiff : v. : CASE NO. 2005-09979-AD OHIO DEPARTMENT OF TRANSPORTATION : MEMORANDUM DECISION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On June 13, 2005, plaintiff, Fabiana Sandow, was traveling north on US Route 22 in Hamilton County, when her vehicle ran over a loose manhole cover which then flipped up and damaged the front passenger side wheel rim and door of the vehicle. Plaintiff related the manhole cover was not secure and her vehicle s tire ran over the unsecured cover causing it to strike located the side the of plaintiff s manhole at 2004 Honda approximately Pilot. 50 feet Plaintiff from the intersection of East Galbraith and Montgomery Rd (US Route 22) heading north. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $1,567.38, the cost of automotive repair resulting from the June 13, 2005, incident. Plaintiff contended she incurred these damages as a result of negligence on the part of defendant, Department of Transportation ( DOT ), in maintaining a hazardous condition on the roadway. {¶ 3} 3) Defendant The filing fee was paid. explained the area where plaintiff s damage event occurred was located in a construction zone under the control of DOT contractor, The Ruhlin Company ( Ruhlin ). Construction on widening Montgomery Road began on February 26, 2004, with a completion date of November 3, 2005. roadway construction plaintiff s damage had been occurrence completed by June in 13, It appears the area 2005. of Defendant submitted written comments concerning the damage-causing manhole cover from Ruhlin s Project Superintendent, Norman B. Obert. Obert noted the manhole was adjusted to grade using existing components in October, 2004. sewer manhole indicating securing was manhole Obert related the existing storm emplaced lids attachments according held in to DOT specifications place Obert further required. by gravity, with related, no the existing lid and casting of the storm sewer manhole was used since DOT did not contract for or request new components be installed. {¶ 4} 4) Defendant damage incidents control of contractual a asserted occurring in contractor. agreement, DOT a has no construction Defendant was responsibility stated responsible roadway within the construction area. zone for for under the Ruhlin, by maintaining the Therefore, DOT argued Ruhlin 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. {¶ 5} 5) Furthermore, calls or complaints defendant about the denied subject receiving condition. any prior Defendant insisted neither DOT nor Ruhlin had any notice of the manhole cover prior to June 13, 2005. Defendant contended plaintiff failed to prove her property damage was caused by any negligent act or omission on the part of DOT or its agents. {¶ 6} 6) manhole Defendant on US submitted Route 22. photographic This photograph evidence depicts a of the manhole located entirely off the traveled portion of the roadway on the roadside berm area near but not on a driveway entrance to a private business. CONCLUSIONS OF LAW {¶ 7} 1) The duty of DOT to maintain the roadway 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, 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 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. {¶ 9} 3) Department of This court has Transportation is previously held that the not held liable for to be damages sustained by individuals who used the berm or shoulder of a highway for travel without adequate reasons. Colagrossi v. Department of Transportation (1983), 82-06474-AD. Generally, a plaintiff is barred from recovery for property damage caused by a defective condition located off the traveled portion of the roadway. {¶ 10} 4) The shoulder of a highway is designed to serve a purpose which may include travel under emergency circumstances. It is for the trier of fact to determine whether driving on the shoulder is a foreseeable and reasonable use of the shoulder of the highway. 128. Dickerhoof v. City of Canton (1983), 6 Ohio St. 3d In the case at bar, plaintiff has offered no reasonable explanation for driving on the berm area of a roadway. {¶ 11} 5) Plaintiff, in the instant case, has shown no adequate reason for her action of driving on the berm of the highway, consequently, based on supra, this case is denied. the rationale of Colagrossi, If a plaintiff sustains damage because of a defect located off the marked, regularly traveled portion of a roadway, a necessity for leaving the roadway must be shown. 0612-AD. Lawson v. Department of Transportation (1977), 75Inadvertent travel based on inattention is not an adequate reason or necessity for straying from the regularly traveled portion of the roadway. Smith v. Ohio Department of Transportation (2000), 2000-05151-AD. Plaintiff has failed to prove her property damage was caused by any negligence on the part of defendant. In fact the sole cause of plaintiff s damage was her own negligent driving. Dept. of Transp., Dist. 7, See Wieleba-Lehotzky v. Ohio 2004-03918-AD, 2004-Ohio-4129; Repasky v. Ohio Dept. of Transp., 2005-02699-AD, 2005-Ohio-5383. IN THE COURT OF CLAIMS OF OHIO FABIANA SANDOW : Plaintiff : v. : CASE NO. 2005-09979-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: Fabiana Sandow 9555 Benchmark Lane Cincinnati, Ohio 45242 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 2/1 Filed 2/28/06 Sent to S.C. reporter 3/24/06

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