Opinion
2021-00683AD
03-22-2022
JOHN M. ADAMS Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant
Sent to S.C. Reporter 1/18/23
MEMORANDUM DECISION
{¶1} John Adams ("plaintiff") filed this claim against the defendant, Ohio Department of Transportation ("ODOT"), to recover damages which occurred when his 2015 Chevrolet Truck was struck by paint overspray on October 9, 2021, while traveling on State Route ("SR") 4, near SR 63, in Butler County, Ohio. This road is a public road maintained by ODOT. Plaintiffs vehicle sustained damages in the amount of $905.25. Plaintiff has an automobile insurance policy with Farmers Insurance which has a $250.00 deductible. Plaintiff submitted the $25.00 filing fee with the form complaint.
{¶2} The evidence in this case reveals that the area where plaintiff had his accident was a construction zone. ODOT had contracted with Great Lakes Construction Company to do certain construction work on this section of SR 4 in Butler County.
{¶3} In the Investigation Report, ODOT indicates that the incident involving plaintiffs vehicle occurred on SR 4 in Butler County at county mile marker 15.7, state mile marker 26.13. The agency reiterates that this area was part of an ongoing construction project being undertaken by the Great Lakes Construction Company. The agency maintained that it was not aware of any paint overspray in the construction area immediately prior to plaintiffs accident.
{¶4} Defendant has a duty to maintain its highways in a reasonable safe condition for the motoring public. Knickel v. Ohio Department of Transportation, 49 Ohio App.2d 335, 361 N.E.2d 486 (10th Dist. 1976). However, defendant is not an absolute insurer of the safety of its highways. See Kniskern v. Township 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, 588 N.E.2d 864 (10th Dist. 1990). Generally, a defendant is only liable for roadway conditions of which it has notice of but fails to correct. Bussard v. Dept. of Transp., 31 Ohio Misc.2d 1, 507 N.E.2d 1179 (Ct. of Cl. 1986).
{¶5} Defendant asserts that Great Lakes Construction Company, by contractual agreement, was responsible for roadway damages, occurrences, or mishaps within the construction zone. Therefore, ODOT argues that Great Lakes Construction Company is the proper party defendant in this action.
{¶6} 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 Department of Transportation, Ct. of Cl. No. 2003-09343-AD, jud. 2004-Ohio-159.
{¶7} Defendant relies on the holding in Gore v. Ohio Department of Transportation, 10th Dist. No. 02AP-996, 2003-Ohio-1648, to assert it is not liable for the damage to plaintiffs vehicle caused by the paint overspray in the work zone. However, the Gore case involved mowing operations performed by an independent contractor. The Court of Appeals in Gore found that grass cutting "is not the kind 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. Rodic v. Koba, 8th Dist. No. 77599, 2000 Ohio App. LEXIS 5715 (Dec. 7, 2000). ODOT had no reason to believe that the work, if done properly, would cause injury to anyone. 2000 Ohio App. LEXIS 5715 at *10. 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." Gore at ¶ 31.
{¶8} However, Gore went on to state, "Work 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, 61 Ohio St. 215, 55 N.E. 618, (1899) 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.
{¶9} "To 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.
{¶10} "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 ¶ 20, 21 & 23.
{¶11} Thus, defendant's claim that liability for any damages, occurrences, or mishaps is imputed to Great Lakes Construction Company is without merit as this court has already determined construction work is an inherently dangerous activity. However, in order for the plaintiff to prevail on a claim for damage to motor vehicles while traveling in a construction zone, the court may only pass judgment on whether the 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 painting operation that damaged plaintiff's vehicle, to insure it was providing notice to the traveling public about this operation.
{¶12} 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., 114 Ohio App.3d 346, 354, 683 N.E.2d 112 (1995). The test is whether, under the totality of the circumstances, "ODOT acted sufficiently to render the highway reasonably safe for the traveling public during the construction project." Basilone v. Ohio Dept. of Transp., 1st Dist. No. 00AP-811, 2001 WL 118602 (Feb. 13, 2001) citing Feichtner, and Lumbermens Mut. Cas. Co. v. Ohio Dept. of Transp., 49 Ohio App.3d. 129, 551 N.E.2d 215 (1988).
{¶13} Plaintiff did file a response to defendant's Investigation Report. Plaintiff stated there was no signage indicating that a painting operation was occurring. Plaintiff also submitted an estimate from Mike's Collision Center in the amount of $905.25.
{¶14} 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, 99-12545-AD (2000). A failure to exercise ordinary care may be shown in situations where motorists do not receive adequate or effective advisement of a DOT painting activity. See Hosmer v. Ohio Department of Transportation, Ct. of Cl. No. 2002-08301-AD, 2003-Ohio-1921.
{¶15} ODOT does not address the issue of signage in their Investigation Report.
{¶16} ODOT's Pavement Marking Operations Procedures in pertinent part states:
"2F. The WET PAINT - KEEP OFF signs shall be placed facing traffic as follows:
a) The beginning and end of line application;
b) All side and cross roads, and;
c) Maximum interval of one mile
"2G. When line markings require greater than a two minute drying time or when the actual field corrections exceed two minutes drying time. The lane from which the line marking machine applies line markings shall be closed until the line has dried to a totally track-free condition."
{¶17} The scope of defendant's duty to ensure the safety of state highways is defined by the Manual. Leskovac v. Ohio Dept. of Transp., 71 Ohio App.3d 22, 27, 593 N.E.2d 9 (10th Dist. 1990). Certain portions of the Manual are permissive, meaning some decisions are within defendant's discretion and engineering judgment. Perkins v. Ohio Dept. of Transp., 65 Ohio App.3d 487, 584 N.E.2d 794 (10th Dist. 1989). The issue of whether an act constitutes a mandatory duty or a discretionary act determines the scope of the state's liability because ODOT is immune from liability for damages resulting from not performing a discretionary act. Gregory v. Ohio Dept. of Transp., 107 Ohio App.3d 30, 33-34, 667 N.E.2d 1009 (10th Dist. 1995), citing Winwood v. Dayton, 37 Ohio St.3d 282, 525 N.E.2d 808 (1988). A deviation from the mandatory standards of the Manual renders ODOT negligent per se and liable in damages if proximate causation is established. Madunisky v. Ohio Dept. of Transp., 109 Ohio App.3d 418, 564 N.E.2d 462 (10th Dist. 1996), Perkins, supra. In the instant claim, defendant's contractor did not comply with the Manual.
{¶18} Based on the contractor's failure to put up the appropriate signage, defendant is liable for the contractor's negligence.
{¶19} Therefore, judgment is GRANTED in favor of plaintiff in the amount of $250.00, his insurance deductible, plus $25.00 for reimbursement of the filing fee pursuant to the holding in Bailey v. Ohio Department of Rehabilitation and Correction, 62 Ohio Misc.2d 19, 587 N.E.2d 990 (Ct. of Cl. 1990).
ENTRY OF ADMINISTRATIVE DETERMINATION
{¶20} 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 plaintiff in the amount of $275.00, which includes reimbursement of the $25.00 filing fee. Court costs are assessed against defendant.