Conrad v. Ohio Dept. of Transp. , 2012 Ohio 2084 ( 2012 )


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  • [Cite as Conrad v. Ohio Dept. of Transp., 
    2012-Ohio-2084
    .]
    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.us
    JASON CONRAD
    Plaintiff
    v.
    OHIO DEPARTMENT OF TRANSPORTATION
    Defendant
    Case No. 2011-06340-AD
    Deputy Clerk Daniel R. Borchert
    MEMORANDUM DECISION
    {¶1}    Plaintiff, Jason Conrad, filed this action against defendant, Ohio
    Department of Transportation (ODOT), contending his 2000 model 379 Peterbilt truck
    with attached trailer suffered significant damage as a proximate result of negligence on
    the part of ODOT in maintaining a hazardous condition on US 22. Plaintiff recalled his
    described damage incident occurred on April 12, 2011, after leaving his home “around
    noon.” Specifically, plaintiff related he was “traveling west on Ste Rt 22 just passed
    Ringgold Southern Rd” when he “hit a dip in the road.” Plaintiff explained that “[t]he dip
    was not visible while driving at the posted speed and there were no signs warning me of
    any changes to road condition. After hitting the dip I noticed my truck seemed to pull
    toward the right.” Plaintiff further explained, “I continued to Columbus to drop off my
    load. When I unhooked from the trailer, I noticed that the truck was still not handling
    correctly, so I started looking for damage, that’s when I saw that the right rear spring
    was broke.         I had to call work and explain that I couldn’t work till I got the spring
    replaced.” Plaintiff initially requested reimbursement of $2,161.00; however, plaintiff
    Case No. 2006-03532-AD                   -2-               MEMORANDUM DECISION
    Case No. 2006-03532-AD                   -2-               MEMORANDUM DECISION
    discovered additional damage and on May 13, 2011, he notified the court that his loss
    totaled $4,398.30, the estimated cost of wages lost, vehicle repair, and related
    expenses. The filing fee was paid.
    {¶2}   On September 26, 2011, a judge of the Court of Claims granted plaintiff’s
    motion to reduce the prayer amount to $2,500.00, the statutory maximum damage
    amount allowed under R.C. 2743.10, and transferred the case to the administrative
    docket. See R.C. 2743.10.
    {¶3}   Defendant denied liability in this matter based on the contention that no
    ODOT personnel had any knowledge of the particular damage-causing condition prior to
    April 12, 2011. Defendant located the roadway defect “at approximately milepost 21.97
    on US 22 in Pickaway County” and advised that “ODOT did not receive any reports of
    the dip in the road or have knowledge of the dip in the road prior to the incident.” Thus
    defendant denied having “actual notice of the defect.”
    {¶4}   Defendant submitted an e-mail from the Pickaway County Manager, Jeff
    Rush, who stated that at, “approximately 12 Noon on 4/12/11 we were notified of an
    issue with a ‘dip’ in the pavement. We were in the midst of a spring with excessively
    high rainfall. Upon inspection, I contacted Dan Wise, the District 6 Roadway Services
    Case No. 2006-03532-AD                   -3-                MEMORANDUM DECISION
    Manager.” Rush explained that he “contacted our Traffic Department to have crews set
    up a detour, and contacted Pickaway County forces to get signs, barricades and barrels
    mobilized to close the road. We had the roadway closed with proper detour and all
    personnel had returned to our facility to clock out by 3:30 PM.”
    {¶5}    Defendant denied ODOT negligently maintained US 22 in Pickaway
    County. Defendant noted that when “Pickaway County Manager Jeff Rush was notified
    of the dip on US 22, he immediately had a detour set up to prevent any mishaps on this
    roadway past Ringgold-Southern Road.” Defendant contended that ODOT and plaintiff
    learned of the dip in the road at the same time and that “ODOT was not negligent in
    remedying the situation.”
    {¶6}    Plaintiff filed a response disputing the statements and conclusions
    presented in defendant’s investigation report.     Specifically, plaintiff related that the
    detour was not in place until much later in the day. Plaintiff explained that after he had
    driven to Columbus and delivered his load, he assessed the damage to his truck.
    Plaintiff returned home over the same roads in an attempt to discover what had caused
    the damage.    Plaintiff recalled that “[t]he only thing I saw was some state workers
    standing in the roadway looking around, no signs or anyone directing traffic away from
    the dip.” Plaintiff pointed out that the roadway defect was located in a “lower area
    between two hills,” and that excessive rain water rushes through the area causing the
    gravel to wash away thereby weakening the pavement. Plaintiff submitted photographs
    of the area taken on November 21, 2011, which depict several depressions and shallow
    trenches in the gravel located on the shoulder of the roadway adjacent to the paved
    Case No. 2006-03532-AD                   -4-               MEMORANDUM DECISION
    Case No. 2006-03532-AD                   -4-               MEMORANDUM DECISION
    berm.
    {¶7}   Defendant filed a reply to plaintiff’s response and included a statement
    from Ron Duncan, an ODOT employee who identified himself as an Acting
    Transportation Manager. Duncan related that two ODOT workers, Randy Vorhees and
    Dennis Pasco, were first aware of the dip in the road on SR 22 at 8:30 a.m. on April 12,
    2011. According to Duncan, Vorhees and Pasco called him to the site where they
    discovered the culvert beneath the roadway was underwater, blocked by some trees
    that had washed down a hillside. Duncan stated that initially they intended to remove
    the trees but at some later time the decision was made to close the road. Duncan
    asserted that barricades used to close the road and signs related to the detour were in
    place by 3:30 p.m. In its reply, defendant suggested that the road was not closed
    sooner because the traffic was progressing through the area without losing control “by
    going out of their lane of travel.” Defendant also contended that plaintiff compounded
    the damage to the truck by driving it back home after learning of the broken spring.
    {¶8}   For plaintiff to prevail on a claim of negligence, he must prove, by a
    preponderance of the evidence, that defendant owed him a duty, that it breached that
    duty, and that the breach proximately caused his injuries.       Armstrong v. Best Buy
    Case No. 2006-03532-AD                          -5-        MEMORANDUM DECISION
    Company, Inc., 
    99 Ohio St. 3d 79
    , 
    2003-Ohio-2573
    ,¶8 citing Menifee v. Ohio Welding
    Products, Inc. (1984), 
    15 Ohio St. 3d 75
    , 77, 15 OBR 179, 
    472 N.E. 2d 707
    . Defendant
    must exercise due diligence in the maintenance and repair of highways. Hennessy v.
    State of Ohio Highway Department (1985), 85-02071-AD.
    {¶9}    Furthermore, defendant has a duty to post warning signs notifying
    motorists of highway defects or dangerous conditions. Gael v. State (1979), 77-0805-
    AD. There is no evidence ODOT personnel placed any warning or advisory signs at or
    near milepost 21.97 on US 22 to either warn or advise motorists of roadway conditions
    created by the blocked culvert during the nearly four hours ODOT workers were aware
    of the problem prior to plaintiff’s incident.
    {¶10} As a necessary element of this type of claim, plaintiff was required to
    prove proximate cause of his damage by a preponderance of the evidence. See, e.g.
    Stinson v. England, 
    69 Ohio St. 3d 451
    , 
    1994-Ohio-35
    . 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
    .
    {¶11} “If an injury is the natural and probable consequence of a negligent act
    and it is such as should have been foreseen in the light of all the attending
    circumstances, the injury is then the proximate result of the negligence.       It is not
    necessary that the defendant should have anticipated the particular injury.         It is
    sufficient that his act is likely to result in an injury to someone.” Cascone v. Herb Kay
    Co. (1983), 
    6 Ohio St. 3d 155
    , 160, 6 OBR 209, 
    451 N.E. 2d 815
    , quoting Neff Lumber
    Co. v. First National Bank of St. Clairsville, Admr. (1930), 
    122 Ohio St. 302
    , 309, 171
    Case No. 2006-03532-AD                   -6-                MEMORANDUM DECISION
    Case No. 2006-03532-AD                   -6-                MEMORANDUM DECISION
    N.E. 327.
    {¶12} The credibility of witnesses and the weight attributable to their testimony
    are primarily matters for the trier of fact. State v. DeHass (1967), 
    10 Ohio St. 2d 230
    ,
    39 O.O. 2d 366, 
    227 N.E. 2d 212
    , paragraph one of the syllabus. The court is free to
    believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
    
    176 Ohio St. 61
    , 26 O.O. 2d 366, 
    197 N.E. 2d 548
    .
    {¶13} The trier of fact finds plaintiff’s contentions to be credible and supported by
    the additional information supplied with defendant’s reply. Evidence has established
    defendant had actual notice of the roadway defect nearly four hours prior to plaintiff’s
    property-damage event. Upon review of all the evidence presented, the court finds that
    defendant did not act reasonably in failing to timely warn motorists of the roadway
    defect after confirming the existence and location of the hazard at 8:30 a.m. on April 12,
    2011. In the present action, the court concludes sufficient evidence has been offered to
    establish defendant breached its duty of care owed to the traveling public by failing to
    provide adequate warning of the dip in the road. See Brown v. Ohio Dept. of Transp.-
    Dist.8, Ct. of Cl. No. 2008-09350-AD, 
    2009-Ohio-7105
    .
    {¶14} Damage assessment is a matter within the function of the trier of fact.
    Case No. 2006-03532-AD                  -7-                MEMORANDUM DECISION
    Litchfield v. Morris (1985), 
    25 Ohio App. 3d 42
    , 25 OBR 115, 
    495 N.E. 2d 462
    .
    Reasonable certainty as to the amount of damages is required, which is that degree of
    certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement
    Sys. Of Ohio (1995), 
    102 Ohio App. 3d 782
    , 
    658 N.E. 2d 31
    . In the instant claim,
    plaintiff has failed to submit any evidence to substantiate his claim of lost wages,
    $500.00 per day.     Plaintiff did present receipts for parts totaling $1,273.30 and
    inasmuch as plaintiff was able to perform the repairs, the court finds $300.00 to be a
    reasonable sum for both repairs. Defendant is liable to plaintiff for the damage proven,
    $1,573.30, plus the $25.00 filing fee which may be awarded as compensable costs
    pursuant to R.C. 2335.19.     See Bailey v. Ohio Department of Rehabilitation and
    Correction (1990), 
    62 Ohio Misc. 2d 19
    , 
    587 N.E. 2d 990
    .
    Case No. 2006-03532-AD            -8-          MEMORANDUM DECISION
    Case No. 2006-03532-AD            -8-          MEMORANDUM DECISION
    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.us
    JASON A. CONRAD
    Plaintiff
    v.
    OHIO DEPARTMENT OF TRANSPORTATION
    Defendant
    Case No. 2011-06340-AD
    Deputy Clerk Daniel R. Borchert
    Case No. 2006-03532-AD                     -9-               MEMORANDUM DECISION
    ENTRY OF ADMINISTRATIVE
    DETERMINATION
    Having considered all the evidence in the claim file and, for the reasons set forth
    in the memorandum decision filed concurrently herewith, judgment is rendered in favor
    of plaintiff in the amount of $1,598.30, which includes the filing fee. Court costs are
    assessed against defendant.
    Deputy Clerk
    Entry cc:
    Jason A. Conrad                            Jerry Wray, Director
    11825 Cincinnati-Zanesville Road           Department of Transportation
    Stoutsville, Ohio 43154                    1980 West Broad Street
    Columbus, Ohio 43223
    SJM/laa
    1/9
    Filed 1/30/12
    Sent to S.C. reporter 5/10/12
    

Document Info

Docket Number: 2011-06340-AD

Citation Numbers: 2012 Ohio 2084

Judges: Borchert

Filed Date: 1/30/2012

Precedential Status: Precedential

Modified Date: 10/30/2014