Riggs v. Ohio Dept. of Transp., Dist. 1

[Cite as Riggs v. Ohio Dept. of Transp., Dist. 1, 2012-Ohio-3221.]
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
DOUGLAS RIGGS
Plaintiff
v.
OHIO DEPT. OF TRANSPORTATION, DISTRICT 1
Defendant
Case No. 2011-12668-AD
Clerk Mark H. Reed
MEMORANDUM DECISION
{¶1} Plaintiff, Douglas Riggs, related he was traveling east on State Route 103
“at roughly 45-50 mph with 20-30 mph winds coming from west-southwest direction”
when his 2001 Honda Insight “went off the right side of the road.” Plaintiff explained
that “my car was pulled down into the stone edging which is about 38 inches wide. In
the stone edging there is placed a mile marker #3 which I struck” causing significant
damage to the vehicle. Plaintiff pointed out the car sustained damage to the front rim,
bumper, headlight bracket, door, and mirror. Plaintiff submitted photographs of State
Route 103 at mile marker 3 which depict a straight paved roadway, bordered by a
painted white edge line. Beyond the white line there is a narrow, paved berm and the
shoulder of the roadway consists of approximately three feet of loose rock. A small
square sign atop a short metal post has been placed in the grassy area beyond the rock
shoulder. The trier of fact notes that the sign is entirely outside of the regularly traveled
portion of the roadway. Plaintiff recalled his damage incident occurred at approximately
1:50 p.m. on November 10, 2011. Plaintiff implied the damage to his automobile was
proximately caused by negligence on the part of defendant, Ohio Department of
Transportation (ODOT), in maintaining a roadway marker too close to the roadway
adjacent to State Route 103. Plaintiff filed this complaint seeking to recover $2,500.00,
the stated cost of replacement parts and related repair expenses. The filing fee was
paid.
{¶2} Defendant denied liability based on the contention that the mile marker
plaintiff’s vehicle struck is clearly outside the portion of the roadway intended for travel
and consequently, ODOT may not be held liable for damage caused by conditions
located off the roadway. Defendant also asserted placement of the sign complies with
the regulations contained in ODOT’s Traffic Engineering Manual. Defendant implied
plaintiff failed to prove his property damage was proximately caused by any negligent
act or omission attributable to ODOT.
{¶3} Plaintiff did not file a response.
{¶4} 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
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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he 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 syllabus in Steven v. Indus. Comm. (1945), 145 Ohio
St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed.
{¶5} 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.
{¶6} In order to prove a breach of the duty to maintain the highways, plaintiff
must prove, by a preponderance of the evidence, that defendant had actual or
constructive notice of the precise condition or defect alleged to have caused the
accident. McClellan v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388.
Defendant is only liable for roadway conditions of which it has notice but fails to
reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR
64, 507 N.E. 2d 1179.
{¶7} Ordinarily in a claim involving roadway defects, plaintiff must prove either:
1) defendant had actual or constructive notice of the defective condition 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. However, the particular standard of proof applies
in situations where a motorist suffers damage from a defective condition located on the
traveled portion of the roadway. Evidence in the instant claim establishes that the sign
plaintiff’s car struck was located entirely off the roadway berm and shoulder.
{¶8} This court has previously held that ODOT is not to be held liable for
damages sustained by individuals who used the berm or shoulder of a highway for
travel without adequate reasons. Colagrossi v. Department of Transportation (1983),
82-06474-AD. Generally, a plaintiff is barred from recovery for property damage caused
by a defect or any condition located off the traveled portion of the roadway.
{¶9} The shoulder of a highway is designed to serve a purpose which may
include travel under emergency circumstances. It is for the trier of fact to determine
whether driving on the shoulder is a foreseeable and reasonable use of the shoulder of
the highway. Dickerhoof v. City of Canton (1983), 6 Ohio St. 3d 128, 6 OBR 186, 451
N.E. 2d 1193. If a plaintiff sustains damage because of a defect located off the marked,
regularly traveled portion of a roadway, a necessity for leaving the roadway must be
shown. Lawson v. Department of Transportation (1977), 75-0612-AD. Plaintiff’s
inability to maintain control of his vehicle during windy conditions is not an adequate
reason or necessity for straying from the regularly traveled portion of the roadway.
Smith v. Ohio Department of Transportation (2000), 2000-05151-AD.
{¶10} Defendant may bear liability if it can be established if some act or
omission on the part of ODOT or its agents was the proximate cause of plaintiff’s injury.
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 any 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
N.E. 327. Evidence available tends to point out the roadway was maintained properly
under ODOT specifications. Plaintiff failed to prove his damage was proximately
caused by any negligent act or omission on the part of ODOT. In fact, the sole cause of
plaintiff’s damage was his own negligent driving. See Franz v. Ohio Dept. of
Transportation, Ct. of Cl. No. 2003-09483-AD, 2003-Ohio-7135; Salcius v. Ohio Dept. of
Transp., Ct. of Cl. No. 2009-06958-AD, 2009-Ohio-7166.
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
DOUGLAS RIGGS
Plaintiff
v.
OHIO DEPT. OF TRANSPORTATION, DISTRICT 1
Defendant
Case No. 2011-12668-AD
Clerk Mark H. Reed
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.
________________________________
MARK H. REED
Clerk
Entry cc:
Douglas Riggs Jerry Wray, Director
145 W. Woodmere Drive Department of Transportation
Tiffin, Ohio 44883 1980 West Broad Street
Columbus, Ohio 43223
011
Filed 2/23/12
sent to S.C. Reporter 7/17/12