Hollan v. Ohio Dept. of Transp. , 2010 Ohio 1956 ( 2010 )

[Cite as Hollan v. Ohio Dept. of Transp., 2010-Ohio-1956.]
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
CHARLES HOLLAN
Plaintiff
v.
OHIO DEPARTMENT OF TRANSPORTATION
Defendant
Case No. 2009-07989-AD
Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION
FINDINGS OF FACT
{¶ 1} Plaintiff, Charles Hollan, filed this action against defendant, Department of
Transportation (ODOT), alleging his 2008 Chevrolet Silverado received paint damage
while traveling on State Route 252 when ODOT personnel were applying fresh edge
line paint to the roadway on September 16, 2009. Plaintiff pointed out he was traveling
south on State Route 252 in Lorain County and had crossed into Medina County near
Grafton Road when he observed the ODOT paint striping operation at approximately
10:00 a.m. Plaintiff related “I turned west on Grafton, (completed) my (business) and
came home and at that time I saw the white paint on the passenger side of my new
2008 Silverado [t]ruck.” Plaintiff asserted he did not notice any warning signs such as
“Wet Paint” when he approached the edge line painting activity on State Route 252 near
Grafton Road. Plaintiff noted his truck had paint damage on the passenger side, wheel
wells, and tires, as well as the rear bumper. Plaintiff contended the paint damage to his
vehicle was proximately caused by negligence on the part of ODOT personnel in failing
to adequately warn him of the moving painting operation on September 16, 2009.
Consequently, plaintiff filed this complaint seeking to recover damages in the amount of
$1,785.11, the cost of paint removal. The $25.00 filing fee was paid and plaintiff
requested reimbursement of that cost along with his damage claim.
{¶ 2} Defendant acknowledged ODOT personnel were painting white edge lines
on State Route 252 in both Lorain and Medina Counties on September 16, 2009 from
8:30 a.m. to 11:45 a.m. Defendant explained three trucks were involved in the painting
operation which is classified as “a moving work zone that comes under the authority of
the Manual of Traffic Control for Construction and Maintenance Operations (Manual).”
Defendant insisted all traffic control requirements mandated by the Manual were
observed during the course of the edge line painting. Defendant pointed out the “traffic
control that was in effect for the paint operation in question included the lead paint truck,
the paint striper, and a follow truck” along with “Wet Paint” signs posted throughout the
painting area on State Route 252. Defendant further explained that during a moving
painting operation the trail vehicle “was functioning in the appropriate manner by
preventing traffic from entering the striping operation.” Defendant advised plaintiff noted
in his complaint “I saw the road striping truck ahead,” thereby admitting he was aware of
the painting procedures. Defendant contended all Manual mandated traffic control was
observed during the course of the painting operation and all safety precautions were in
place to advise motorists of the painting activity. Defendant further contended ODOT
did not breach any duty of care owed to motorists such as plaintiff when conducting the
September 16, 2009 painting operation.
{¶ 3} Defendant submitted a statement from ODOT Highway Technician, Steve
Young, who was involved in the painting activity. Young provided the following
description of the operation:
{¶ 4} “On September 16th were painted on State Route 252 in Lorain County
between 0830 am and 1100 am. We were painting white edge line temperature was
between 65 degrees and 70 degrees. We had wet paint with right arrow pointing down
and edge line painting on the follow truck, which was between 1000' and 1500' behind
the striper. Log point were 0 to 5.5.
{¶ 5} “We also painted State Route 252 in Medina County between the 1 and
the 5. These were just spot patches on both routes. We had the same set up with the
trucks in Medina. The time was 1100 am to 1145 am.”
{¶ 6} Plaintiff filed a response observing “Rt. 252 is very windy and hilly in this
area” where he encountered the painting operation. Plaintiff recorded “at the point I
noticed the painting crew, (there) is a sharp bend in the road (and) [a]t that point (there)
is less than two tenth(s) of a mile between (the) bend (and) Grafton Rd.” Plaintiff again
asserted there were no warning signs on State Route 252 to advise motorists of the
painting operation.
CONCLUSIONS OF LAW
{¶ 7} Defendant has the duty to maintain its highways 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.
{¶ 8} Plaintiff has the burden of proof to show his property damage was the
direct result of the failure of defendant’s agents to exercise ordinary care in conducting
roadway painting operations. Brake v. Department of Transportation (2000), 99-12545-
AD. A failure to exercise ordinary care may be shown in situations where motorists do
not receive adequate or effective advisement of an ODOT painting activity. See
Hosmer v. Ohio Department of Transportation, Ct. of Cl. No. 2002-08301-AD, 2003-
Ohio-1921. In the instant claim, plaintiff has acknowledged he discovered defendant
was conducting edge line painting and apparently drove over fresh paint on the roadway
edge line after having full knowledge of the operation.
{¶ 9} Plaintiff has not shown, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to him or that his injury was proximately
caused by defendant’s negligence. Plaintiff has failed to show that his property damage
was connected to any conduct under the control of defendant, that defendant was
negligent in conducting the painting operation, or that there was any negligence on the
part of defendant in regard to providing proper notification. Roe v. Ohio Dept. of
Transp., Ct. of Cl. No. 2008-09872-AD, 2009-Ohio-3579; Layfield v. Dept. of Transp.,
Ct. of Cl. No. 2008-10692-AD, 2009-Ohio-3776. Conversely, evidence directs the court
to conclude plaintiff’s own negligent driving was the cause of his property damage.
Therefore, this claim is denied. See Rolfes v. Ohio Dept. of Transportation, Ct. of Cl.
No. 2004-09941-AD, 2005-Ohio-840; Delamatter v. Ohio Dept. of Transp., Ct. of Cl. No.
2007-01355-AD, 2007-Ohio-6387.
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
CHARLES HOLLAN
Plaintiff
v.
OHIO DEPARTMENT OF TRANSPORTATION
Defendant
Case No. 2009-07989-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
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:
Charles Hollan Jolene M. Molitoris, Director
18338 South Boone Road Department of Transportation
Columbia Station, Ohio 44028 1980 West Broad Street
Columbus, Ohio 43223
RDK/laa
12/16
Filed 1/7/10
Sent to S.C. reporter 4/30/10