Opinion
2019-01156AD
09-10-2020
STEPHEN CARBONARA Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant
MEMORANDUM DECISION
{¶1} Stephen Carbonara ("plaintiff) filed this claim against the Ohio Department of Transportation ("ODOT"), to recover damages which occurred on November 26, 2019, when his 2013 Toyota Tacoma was struck by rocks propelled by a mower, while traveling on Interstate Route ("IR") 71 South, in Clinton County, Ohio. This road is a public road maintained by ODOT. Plaintiffs vehicle sustained damages in the amount of $4,818.56. Plaintiff submitted the $25.00 filing fee.
{¶2} Defendant filed an Investigation Report stating that it should not be held liable for the damage because its independent contractor, Thompson Interstate Mowing Inc., was mowing at that location at the time of the incident. Thompson Interstate Mowing Inc. contracted with ODOT to indemnify ODOT of the contractor's negligence.
{¶3} Plaintiff did file a response to defendant's Investigation Report reasserting his claim.
{¶4} Defendant has the duty to maintain its highway in a reasonably safe condition for the motoring public. See Kniskern v. Township of Somerford, 112 Ohio App.3d 189, 678 N.E.2d 273 (10th Dist. 1996). However, defendant is not an 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). Furthermore, the duty to cut grass on highways is delegable to an independent contractor such as Thompson Interstate Mowing Inc. and consequently, no liability shall attach to DOT for damage caused by the negligent acts of the independent contractor engaged in mowing operations. Gore v. Ohio Department of Transportation, 10th Dist. No. 02AP-996, 2003-Ohio-1648; Cwalinski v. Ohio Dept. of Transp., 2003-06778-AD, 2003-Ohio-5561.
{¶5} Plaintiff has not proven, by a preponderance of the evidence, that defendant failed to discharge a duty owed to him or that his damage was proximately caused by defendant's negligence. Plaintiff failed to show the damage to his car was connected to any conduct under the control of defendant, or any negligence on the part of defendant. Taylor v. Transportation Dept, 97-10898-AD (1998); Weininger v. Department of Transportation, 99-10909-AD (1999); Witherell v. Ohio Dept. of Transportation, 2000-04758-AD (2000).
{¶6} Finally, the law in Ohio is that ODOT is not an absolute insurer of a motorist's safety on the highway. 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). The department is only liable for damage when the court finds that it was negligent. This, the court is unable to do. Therefore, judgment is entered in favor of the defendant.
IN THE COURT OF CLAIMS OF OHIO
{¶7} 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.