Kirschnick v. Ohio Dept. of Transp.
Annotate this Case
Download PDF
[Cite as Kirschnick v. Ohio Dept. of Transp., 2006-Ohio-7169.] IN THE COURT OF CLAIMS OF OHIO JASON F. KIRSCHNICK : Plaintiff : v. : CASE NO. 2005-11078-AD OHIO DEPARTMENT OF TRANSPORTATION : MEMORANDUM DECISION : Defendant : : : : : : : : : : : : : : : : : {¶ 1} Plaintiff, Jason F. Kirschnick, stated he was traveling north on Interstate 271 through a construction zone on October 25, 2005, at approximately 6:00 a.m., when his automobile was pelted by many large pieces of road debris and rocks. Plaintiff related this particular area of Interstate 271, was ripped up for about two miles, and the roadway surface, was completely stripped to almost a gravel state in both northbound lanes. Plaintiff noted his car windshield, hood, and front fenders were damaged by the roadway debris. {¶ 2} Plaintiff contended defendant, Department of Transportation ( DOT ), should bear liability for the cost of repairing his vehicle. Consequently, plaintiff filed this complaint seeking to recover $2,274.28, the cost of automotive repair and car reimbursement. rental expenses, plus $25.00 for filing fee Plaintiff recalled he contacted DOT immediately after the October 25, 2005, incident notifying DOT about the roadway conditions and damage to his vehicle. After notifying defendant of his property damage occurrence, plaintiff received multiple e-mail messages from DOT employee, Linda McPherson, regarding procedures in filing a claim. copies of these messages he Plaintiff submitted received. One November 1, 2005, contained the following: message dated [o]ur Summit County Manager has indicated that this is the result of maintenance. McPherson then advised plaintiff to file a claim for property damage in this court. An earlier e-mail also dated November 1, 2005, advised plaintiff to, not proceed with a claim until we clarify who is responsible for the damage. At the time this e- mail was sent it was unclear to defendant who had maintenance responsibility for the portion of Interstate plaintiff s property damage occurred. whether DOT or a hired contractor 271 where Defendant did not know was in control of this particular section of Interstate 271 at the time of plaintiff s incident. [t]his McPherson did note to plaintiff in this e-mail that, information has been forwarded to you as a public service, and in no way admits liability, nor is this to be considered as an evaluation of your claim. {¶ 3} Defendant explained the portion of Interstate 271 where plaintiff s property damage occurred was an area where roadway repaving operations were being conducted by the Summit County Outpost. All construction work consisting of milling 1.5 inches of asphalt from the roadway surface and then resurfacing the roadway with 1.5 inches of asphalt was contractor, The Shelly Company ( Shelly ). performed by DOT Traffic control for the resurfacing project, located between mile markers 8.0 to 12.5 on Interstate 271, was maintained by DOT s Summit County Outpost. The operation started on October 18, 2005, and was completed on October 31, 2005. Defendant asserted, DOT employee, Frank Phillips of the Summit County Outpost observed Shelly personnel sweeping the milled roadway surface, with a tractor-mounted broom at the end of each day before the road was opened. and DOT insisted the milled roadway was regularly swept appeared visually free from debris. DOT reasoned the construction activity was conducted with due care to protect the motoring public from arising hazardous conditions. {¶ 4} Among other assertions, defendant has contended DOT has no responsibility for damage incidents occurring construction zone under the control of a contractor. in a 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 takes control over a particular roadway section. The duty of DOT to maintain the roadway in a safe drivable condition is not delegable to an construction. an independent contractor involved in roadway DOT may bear liability for the negligent acts of independent contractor charged with roadway construction. See Cowell v. Ohio Department of Transportation (2004), 200309343-AD, jud, 2004-Ohio-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 in connection with particular construction work. See Roadway Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119, 2001 Ohio App. LEXIS 2854. {¶ 5} Plaintiff, in the instant claim, surmised DOT employee, Linda McPherson, action for through damages e-mails, against recommended defendant. he pursue Plaintiff, an in his response to defendant s investigation report, concluded from the information forwarded responsibility activity on the resurfacing. considering that DOT, for by McPherson damages portion that resulting of from Interstate DOT any 271 assumed maintenance scheduled for The trier of fact finds this conclusion erroneous an in e-mail no from way McPherson admits contains liability, considered an evaluation of your claim. subsequently denied any responsibility nor the is disclaimer this to be Furthermore, defendant for plaintiff s damage and presented several arguments in defense of any liability for damage sustained. {¶ 6} In furtherance of its position, defendant denied neither DOT nor Shelly Interstate conducted 271 on had notice after or of milling about any and October milling clean 24, or up debris attempts 25, 2005. left had on been Defendant professed liability cannot be established when requisite notice of damage-causing debris conditions cannot be proven. Generally, defendant is only liable for roadway conditions of which it has notice, but fails to correct. Transp. (1986), 31 Ohio Misc. 2d 1. a dangerous agents condition actively cause is not such (1922), 106 Ohio St. 94, However, proof of notice of necessary condition, situation in the instant matter. at Bussard v. Dept. of when as defendant s appears to be own the See Bello v. City of Cleveland paragraph one of the syllabus; Sexton v. Ohio Department of Transportation (1996), 94-13861. A Shelly representative noted the roadway was milled and swept before being opened to traffic. The construction site was maintained in accordance with DOT specifications for milling and sweeping the roadway. {¶ 7} 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. {¶ 8} 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 Ap. 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 JASON F. KIRSCHNICK : Plaintiff : v. : CASE NO. 2005-11078-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: Jason F. Kirschnick 5878 New Haven Drive Medina, Ohio 44256 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 3/29 Filed 4/11/06 Sent to S.C. reporter 5/11/06
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
