White v. Ohio Dept. of Transp. , 2023 Ohio 3255 ( 2023 )

[Cite as White v. Ohio Dept. of Transp., 2023-Ohio-3255.]
IN THE COURT OF CLAIMS OF OHIO
BAMA R. WHITE Case No. 2023-00033AD
Plaintiff Deputy Clerk Holly True Shaver
v. MEMORANDUM DECISION
OHIO DEPARTMENT OF
TRANSPORTATION
Defendant
{¶1} Bama White (“plaintiff”) filed this claim against the Ohio Department of
Transportation (“ODOT or defendant”), to recover damages which occurred when
plaintiff’s 2014 Nissan Maxima S struck a tire on October 7, 2022, while traveling
northbound on Interstate Route (“IR”) 270, in the center lane at mile marker 43, in Franklin
County, Ohio. This road is a public road maintained by ODOT. Plaintiff’s vehicle
sustained damages in the amount of $1,357.25. Plaintiff seeks $250.00 for vehicular
damage and $1,107.25 in rental car fees. Plaintiff submitted the $25.00 filing fee with the
form complaint.
{¶2} The evidence in this case reveals that the area where plaintiff had the
accident was a construction zone. ODOT had contracted with Shelly & Sands, Inc. to do
certain construction work on this section of IR 270 in Franklin County.
{¶3} In the investigation report, ODOT indicates that the incident involving
plaintiff’s vehicle occurred on IR 270 in Franklin County at state and county mile marker
43.0. ODOT reiterates that this area was part of an ongoing construction project being
undertaken by Shelly & Sands, Inc. ODOT maintains that it was not aware of any tires in
the construction area immediately prior to plaintiff’s accident.
{¶4} Plaintiff filed a response to the investigation report on June 12, 2023.
Case No. 2023-00033AD -2- MEMORANDUM DECISION
{¶5} Defendant has a duty to maintain its highways in a reasonably safe
condition for the motoring public. Knickel v. Ohio Dept. of Transp., 49 Ohio App.2d 335,
339, 361 N.E.2d 486 (10th Dist. 1976). However, defendant is not an absolute insurer of
the safety of its highways. Kniskern v. Twp. of Somerford, 112 Ohio App.3d 189, 678
N.E.2d 273 (10th Dist. 1996); Rhodus v. Ohio Dept. of Transp., 67 Ohio App.3d 723, 730,
588 N.E.2d 864 (10th Dist. 1990). Generally, defendant is only liable for roadway
conditions of which it has notice of but fails to correct. Miller v. Ohio Dept. of Transp.,
10th Dist. Franklin No. 13AP-849, 2014-Ohio-3738.
{¶6} Defendant asserts that Shelly & Sands, Inc., by contractual agreement, was
responsible for roadway damages, occurrences, or mishaps within the construction zone.
Therefore, ODOT argues that Shelly & Sands, Inc. is the proper party defendant in this
action.
{¶7} The duty of ODOT to maintain the roadway in a safe drivable condition is
not delegable to an independent contractor involved in roadway construction. ODOT may
bear liability for the negligent acts of an independent contractor charged with roadway
construction. Cowell v. Ohio Dept. of Transp., Ct. of Cl. No. 2003-09343-AD, jud. 2004-
Ohio-159.
{¶8} Defendant relies on the holding in Gore v. Ohio Dept. of Transp., 10th Dist.
Franklin No. 02AP-996, 2003-Ohio-1648, to assert it is not liable for the damage to
plaintiff’s vehicle caused by the tire in the work zone. However, the Gore case involved
mowing operations performed by an independent contractor. The court in Gore found
that grass cutting “is not the kind of work that cannot be accomplished without inherent
risk of harm to others, nor is it a type that in the ordinary course of performing it harm
would be expected. ODOT had no reason to believe that the work, if done properly, would
cause injury to anyone. ODOT can contract with independent contractors and should
require independent contractors to carry sufficient insurance to cover whatever liability
risks are involved. Stated in the words of the third assignment of error, we believe that
the duty to cut grass on interstate highways is ‘delegable to [an] independent contractor’
and that no liability arises from such delegation, including the obligation to look for
movable objects before mowing an area.” (Citations omitted.) Gore at ¶ 31.
Case No. 2023-00033AD -3- MEMORANDUM DECISION
{¶9} However, “[w]ork is inherently dangerous when it creates a peculiar risk of
harm to others unless special precautions are taken. See Covington & Cincinnati Bridge
Co. v. Steinbrock & Patrick, (1899), 61 Ohio St. 215, 55 N.E. 618, paragraph one of the
syllabus; 2 Restatement of the Law 2d, Torts, Section 427; Prosser & Keeton at 512-513,
Section 71. Under those circumstances, the employer hiring the independent contractor
has a duty to see that the work is done with reasonable care and cannot, by hiring an
independent contractor, insulate himself or herself from liability for injuries resulting to
others from the negligence of the independent contractor or its employees. Covington at
paragraph one of the syllabus.” Gore at ¶ 20.
{¶10} Further, “’[t]o fall within the inherently-dangerous-work exception, it is not
necessary that the work be such that it cannot be done without a risk of harm to others,
or even that it be such that it involves a high risk of such harm. It is sufficient that the
work involves a risk, recognizable in advance, of physical harm to others, which is
inherent in the work itself.’ 2 Restatement of the Law 2d, Torts, at 416, Section 427,
Comment b.” Gore at ¶ 21.
{¶11} “’The inherently-dangerous-work exception does apply, however, when
special risks are associated with the work such that a reasonable man would recognize
the necessity of taking special precautions. The work must create a risk that is not a
normal, routine matter of customary human activity, such as driving an automobile, but is
rather a special danger to those in the vicinity arising out of the particular situation created,
and calling for special precautions. 2 Restatement of the Law 2d, Torts, at 385, Section
413, Comment b; Prosser & Keeton at 513-514, Section 71.’ Id.” Gore at ¶ 23.
{¶12} This court has held numerous times in the past that the duty of ODOT to
maintain the roadway in a safe drivable condition is not delegable to an independent
contractor involved in roadway construction and that ODOT may bear liability for the
negligent acts of an independent contractor charged with roadway construction. Cowell
v. Ohio Dept. of Transp., Ct. of Cl. No. 2003-09343-AD, 2004-Ohio-159.
{¶13} Thus, defendant’s claim that liability for any damages, occurrences, or
mishaps is imputed to Shelly & Sands, Inc. is without merit as this court has already
determined construction work is an inherently dangerous activity. However, in order for
plaintiff to prevail on a claim for damage to a motor vehicle while traveling in a construction
Case No. 2023-00033AD -4- MEMORANDUM DECISION
zone, the court may only pass judgment on whether plaintiff has shown that ODOT
breached its duty to the public in managing the contractor and ensuring the safety of the
public within the construction zone. ODOT could be found negligent in this type of case
only if it failed to properly manage the contractor by reasonably inspecting the
construction site and the work performance of the contractor, or if the agency knew or
should have known about the tire that damaged plaintiff’s vehicle and failed to remove it
or to require the contractor to remove the road hazard.
{¶14} As we consider whether ODOT breached its duty to the public in keeping
the construction area safe, the court must take into account that this was an active
construction zone. Ohio law is clear that “ODOT cannot guarantee the same level of
safety during a highway construction project as it can under normal traffic conditions.
Feichtner v. Ohio Dept. of Transp. (1995), 114 Ohio App.3d 346, 354, 683 N.E.2d 112.”
Dunlap v. W.L. Logan Trucking Co., 161 Ohio App.3d 51, 2005-Ohio-2386, 829 N.E.2d
356, ¶ 30 (10th Dist.).
{¶15} In this case, there is nothing in the record that would allow the court to find
that ODOT did not act appropriately to manage the contractor and keep the construction
area reasonably safe for the motoring public. Plaintiff did not offer any evidence to
counter what was in ODOT’s report regarding this element. Therefore, plaintiff’s claim
must fail.
BAMA R. WHITE Case No. 2023-00033AD
Plaintiff Deputy Clerk Holly True Shaver
v. ENTRY OF ADMINISTRATIVE
DETERMINATION
OHIO DEPARTMENT OF
TRANSPORTATION
Defendant
Case No. 2023-00033AD -5- MEMORANDUM DECISION
{¶16} 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 the defendant. Court costs shall be absorbed by the court, in excess of the filing
fee.
HOLLY TRUE SHAVER
Deputy Clerk
Filed 6/21/23
Sent to S.C. Reporter 9/14/23