المساعد الشخصي الرقمي

مشاهدة النسخة كاملة : Brooks v. Ohio Dept. of Transp.



هيثم الفقى
04-19-2009, 12:10 AM
RITA L. BROOKS

Plaintiff v.
OHIO DEPARTMENT OF TRANSPORTATION

Defendant



Case No. 2008-08396-AD
Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION

Plaintiff, Rita L. Brooks, stated she was traveling on Interstate 271 "before the Broadway/Forbes exit," when her 2002 Toyota Camry was struck by a "chunk of pavement/debris" causing body damage to the hood and grille of the vehicle. Plaintiff recalled the damage to her car occurred on June 16, 2008 at approximately 8:00 p.m. as she was driving through a construction area where the roadway pavement had been mil ed down and resurfacing had not been completed. Plaintiff filed this complaint seeking to recover $723.49, the cost of automotive repair needed as a result of the June 16, 2008 incident. Plaintiff contended she incurred these damages as a proximate cause of negligence on the part of defendant, Department of Transportation ("DOT"), in maintaining the roadway under construction. The $25.00 filing fee was paid and plaintiff requested reimbursement of that cost along with her damage claim.
Defendant acknowledged the area where plaintiff's stated damage event occurred was located within a construction zone maintained by DOT contractor, Kokosing Construction Company, Inc. ("Kokosing"). Defendant related the construction project involved grading and resurfacing, plus resurfacing with asphalt concrete on Interstate 271 in Cuyahoga County. Defendant located plaintiff's incident between


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county mileposts 1.46 and 1.60 on Interstate 271, an area within the construction project work zone. Defendant asserted Kokosing, by contractual agreement, was responsible for maintaining the roadway within the construction zone. Therefore, DOT argued Kokosing 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. Furthermore, defendant contended plaintiff failed to introduce sufficient evidence to prove her damage was proximately caused by roadway conditions created by DOT or its contractors. All construction work was to be performed in accordance with DOT requirements and specifications.
Alternatively, defendant denied that neither DOT nor Kokosing had any notice of any debris material used by Kokosing or connected to any construction activity of DOT's contractor. Plaintiff did not present any evidence to determine the length of time the debris material was present on the roadway prior to 8:00 p.m. on June 16, 2008. Defendant contended plaintiff failed to produce evidence of negligent roadway maintenance. DOT records show "no cal s or complaints were received at the Cuyahoga County Garage regarding the debris in question prior" to plaintiff's June 16, 2008 property damage event.
Defendant submitted a statement from a Kokosing representative, Pam J.
Leblanc, who related the Kokosing Project Manager "went to the area and found no loose pavement on or beside the roadway." Leblanc further related plaintiff had informed her that the damage-causing "loose pavement" had been dislodged by another motorists and propelled into the path of her vehicle.
On December 2, 2008, plaintiff filed a response to the investigation report.
However, plaintiff did not provide any information with respect to how long the debris was on the roadway prior to her encountering it.
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, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723, 588 N.E. 2d 864. The duty of DOT to maintain the roadway in a safe



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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. Cowell v. Ohio Department of Transportation, Ct. of Cl. No. 2003-09343-AD, jud, 2004-Ohio-151. Despite defendant's contentions that DOT did not owe any duty in regard to the construction project, defendant was charged with duties 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. No. 00AP-1119. No evidence other than plaintiff's assertion has been produced to show a hazardous condition was maintained by either Kokosing or DOT.
For plaintiff to prevail on a claim of negligence she must prove, by a preponderance of the evidence, that defendant owed her a duty, that it breached that duty, and that the breach proximately caused her injuries. Armstrong v. Best Buy Company, Inc. 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E. 2d 1088, ¶8 citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff has the burden of proving, by a preponderance of the evidence, that she suffered a loss and that this loss was proximately caused by defendant's negligence.
Barnum v. Ohio State University (1977), 76-0368-AD. However, "[i]t is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain such burden." Paragraph three of the syl abus in Steven v. Indus. Comm. (1945), 145 Ohio St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and fol owed. This court, as trier of fact, determines questions of proximate causation. Shinaver v.
Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477. Defendant professed liability cannot be established when requisite notice of the damage-causing conditions cannot be proven. General y, defendant is only liable for roadway conditions of which it has notice, but fails to correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR 64, 507 N.E. 2d 1179. However, proof of a dangerous condition is not necessary when defendant's own agents actively cause such condition. See Bello v. City of Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the syl abus. Plaintiff has failed to produce sufficient evidence to prove her property



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damage was caused by a defective condition created by DOT's agents. Evidence at best is inconclusive regarding the origin of the debris which damaged plaintiff's vehicle.
Defendant insisted the debris condition was not caused by maintenance or construction activity.
Generally, in order to recover in any suit involving injury proximately caused by roadway conditions including debris, plaintiff must prove either: 1) defendant had actual or constructive notice of the debris and failed to respond in a reasonable time or responded in a negligent manner, or 2) that defendant, in a general sense, maintains its highways negligently. Denis v. Department of Transportation (1976), 75- 0287-AD. Plaintiff has not produced any evidence to indicate the length of time the debris condition was present on the roadway prior to the incident forming the basis of this claim. No evidence has been submitted to show defendant had actual notice of the debris. Additionally, the trier of fact is precluded from making an inference of defendant's constructive notice, unless evidence is presented in respect to the time the debris appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no indication defendant had constructive notice of the debris. Plaintiff has not produced any evidence to infer defendant, in a general sense, maintains its highways negligently or that defendant's acts caused the defective condition. Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD.
Evidence in the instant action tends to show plaintiff's damage was caused by an act of an unidentified third party, not DOT. Defendant has denied liability based on the particular premise it had no duty to control the conduct of a third person except in cases where a special relationship exists between defendant and either plaintiff or the person whose conduct needs to be control ed. Federal Steel & Wire Corp. v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However, defendant may still bear liability if it can be established if some act or omission on the part of DOT was the proximate cause of plaintiff's injury.
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 v. Ohio Dept. of Transp. (1995), 114 Ohio App. 3d 346, 683 N.E. 2d 112. In fact, the duty to render the highway free from unreasonable risk of harm



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is the precise duty owed by DOT to the traveling public under both normal traffic and during highway construction projects. See e.g. White v. Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, 42, 564 N.E. 2d 462. Plaintiff, in the instant claim, has failed to prove defendant or its agents breached any duty of care which resulted in property damage.
Evidence available seems to point out the roadway area was relatively clean of debris and was maintained properly under DOT specifications. Plaintiff failed to prove her damage was proximately caused by any negligent act or omission on the part of DOT or its agents. See Wachs v. Ohio Dept. of Transp., Dist. 12, Ct. of Cl. No. 2005-09481-AD, 2006-Ohio-7162. Consequently, plaintiff's claim is denied.
Court of Claims of Ohio The Ohio Judicial Center 65 South Front Street, Third Floor Columbus, OH 43215 614.387.9800 or 1.800.824.8263 www.cco.state.oh****


RITA L. BROOKS

Plaintiff v.
OHIO DEPARTMENT OF TRANSPORTATION

Defendant



Case No. 2008-08396-AD
Deputy Clerk Daniel R. Borchert
ENTRY OF ADMINISTRATIVE DETERMINATION


Having considered all the evidence in the claim file and, for the reasons set forth



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in the memorandum decision filed concurrently herewith, judgment is rendered in favor of defendant. Court costs are assessed against plaintiff.









____________________



DANIEL R.
BORCHERT

Deputy Clerk
Entry cc: Rita L. Brooks

James G. Beasley, Director

24407 Ridgeline Drive

Department of Transportation Bedford Hts., Ohio 44146

1980 West Broad Street

Columbus, Ohio
43223 RDK/laa 12/12 Filed 12/24/08 Sent to S.C. reporter 3/13/