Opinion
2020-00093AD
10-08-2020
SAMUEL CARTER Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant
MEMORANDUM DECISION
{¶1} Samuel Carter ("plaintiff") filed this claim against the Ohio Department of Transportation ("ODOT"), to recover damages which occurred on November 27, 2019, when his vehicle struck a road sign which fell in the path of his vehicle. At the time, plaintiff was traveling north on Interstate Route ("IR") 75, at approximately mile marker 3. This road is a public road maintained by ODOT. Plaintiffs vehicle sustained damages in the amount of $2,758.88. Plaintiff submitted the $25.00 filing fee.
{¶2} In order to recover on a claim for roadway damages against ODOT, Ohio law requires that a motorist/plaintiff prove all of the following:
{¶3} That the plaintiffs motor vehicle received damages as a result of coming into contact with a dangerous condition on a road maintained by ODOT.
{¶4} That ODOT knew or should have known about the dangerous road condition.
{¶5} That ODOT, armed with this knowledge, failed to repair or remedy the dangerous condition in a reasonable time.
{¶6} In this claim, the court finds that the plaintiff did prove that his vehicle received damages and that those damages occurred as a result of the plaintiffs vehicle coming into contact with a dangerous condition on a road maintained by ODOT.
{¶7} The evidence in this case reveals that the area where plaintiff had his accident was a construction zone. ODOT had contracted with Walsh Construction Company II LLC to improve various sections of IR74 and IR75 in the City of Cincinnati, Hamilton County, Ohio.
{¶8} In the Investigation Report, ODOT indicated that the incident involving plaintiffs vehicle occurred on IR75N, at approximately mile marker 3, in Hamilton County. The agency reiterates that this area was part of an ongoing construction project being undertaken by Walsh Construction Company II LLC. The agency asserted that Walsh is an independent contractor and the contract with Walsh indemnifies ODOT for its own negligence. ODOT maintains that it was not aware of the falling sign, and received no notice of falling road signs on IR75N in the area of the incident in the six (6) months prior to plaintiffs incident. ODOT also maintains that neither ODOT or Walsh Construction Company II LLC had notice of falling road signs in the area of plaintiffs incident prior to plaintiffs incident. However, plaintiff asserted the road sign fell in front of his vehicle prior to striking it. Accordingly, neither ODOT or Walsh could have notice of something that occurred immediately prior to plaintiff striking the signage.
{¶9} 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). However, proof of notice of a dangerous condition is not necessary when defendant's own agents actively cause such condition. Bello v. City of Cleveland, 106 Ohio St.94, 138 N.E. 526 (1922) at paragraph one of the syllabus; Sexton v. Ohio Department of Transportation, 94-13861 (1996).
{¶10} Defendant asserted that Walsh Construction Company, by contractual agreement, was responsible for roadway damages, occurrences, or mishaps within the construction zone. Therefore, ODOT argued that Walsh Construction Company is the proper party defendant in this action. Defendant argued that Walsh Construction Company is responsible for any occurrences or mishaps in the construction zone. All work by the contractor was to be performed in accordance with ODOT mandated specifications and requirements and subject to ODOT approval.
{¶11} 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.
{¶12} 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 signage in the work zone. However, the Gore case involved mowing operations performed by an independent contractor. The Court of Appeals in Gore held:
"The work involved 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 (Dec. 7, 2000), 8th Dist. No. 77599. ODOT had no reason to believe that the work, if done properly, would cause injury to anyone. Id. at 4. 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.
{¶13} However, the court continued, "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 (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.
"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.
"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.
{¶14} Thus, ODOT's claim that liability for any damages, occurrences, or mishaps is imputed to Walsh Construction Company Inc. 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 signage that damaged plaintiffs vehicle.
{¶15} After review of plaintiff's complaint, defendant's Investigation Report, and other evidence in the case file, the court makes the following determination: The circumstances of plaintiffs injury raises the doctrine of res ipsa loquitur to support allegations that defendant breached its duty of care. The doctrine warrants an inference of negligence. Such inference, however, may always be rebutted by defendant. Taxi Cabs of Cincinnati, Inc. v. Kohler, 111 Ohio App. 225, 165 N.E.2d 244, syllabus (1st Dist. 1959).
{¶16} Res ipsa loquitur is a rule of evidence, not a rule of substantive law, and the court must analyze such evidence, along with all the other evidence offered in a case to determine liability. Hake v. Wiedeman Brewing Co., 23 Ohio St.2d 65, 66, 262 N.E.2d 703 (1970).
To warrant application of a rule, a plaintiff must adduce evidence in support of two conclusions: (1) that the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events, it would not have occurred if ordinary care had been observed. (Citations omitted.)
Whether sufficient evidence has been adduced at trial to warrant application of the rule is a question of law to be determined *** by the trial court ***.
{¶17} Hake at 66-67. See also, 70 Ohio Jurisprudence 3d (1986), 300-301, Negligence, Section 159. Therefore, the court is required to consider the facts and circumstances surrounding the situation to determine if res ipsa loquitur is applicable. See Howard v. Pennsylvania Rd. Co., 43 Ohio App. 96, 182 N.E. 663 (6th Dist. 1930).
{¶18} The facts of this case concisely presented are 1) plaintiffs vehicle was damaged by a falling road sign under defendant's control; and, 2) road signs do not normally fall unless negligence is involved. Defendant does not assert that the signage was struck by a third party which would relieve ODOT of liability. See Nusbaum v. Department of Transportation, 2005-03702-AD (2006); Trivisondoli v. Ohio Department of Transportation, 2008-09198-AD (2009); and Hawk v. Ohio Department of Transportation, District 10, 2010-02391-AD, 2010-Ohio-5829.
{¶19} The doctrine of res ipsa loquitur, with its inference of negligence, applies under the facts of the instant claim. The inference of negligence remains and plaintiff is not required to exclude all possible causes of the accident. See Fink v. New York C.R. Co., 144 Ohio St. 1, 56 N.E.2d 456 (1944); Nanashe v. Lemmon, 9th Dist. No. 4747, 162 N.E.2d 569 (1958).
The doctrine of res ipsa loquitur is one of necessity, applicable where the agency or place of the accident is accessible only to the defendant and under his control, and raises an inference of negligence requiring the defendant to explain the accident, if he can, on grounds other than his negligence, when its nature is such as to make it probable that it would ordinarily not have happened except for his negligence. The doctrine is regarded as a qualification of the rule that negligence is not presumed or inferred from the mere fact of injury, and there is no necessity of establishing knowledge where the doctrine applies. The doctrine of res ipsa loquitur is founded on an absence of specific proof of
acts or omissions constituting negligence, and the particular justice of the doctrine rests upon the foundation that the true cause of the occurrence, whether innocent or culpable, is within the knowledge or access of the defendant and not within the knowledge or access of the plaintiff.
{¶20} (Citations omitted.) (Emphasis added.) 70 Ohio Jurisprudence 3d, 296-297, Negligence, Section 157 (1986).
{¶21} Upon review of the circumstances concerning plaintiffs injuries, and in viewing the evidence most favorably to plaintiff, as the court must do in determining whether res ipsa loquitur applies (Howard v. Pennsylvania Rd. Co., 43 Ohio App. 96, 182 N.E. 663, 6th Dist. 1930). The court finds that said doctrine is applicable in the instant action.
{¶22} It is the opinion of this court that it may be inferred that plaintiffs property damages were related to defendant's maintenance of the road sign. The court finds that the instrumentality involved, under the circumstances, i.e., was under the exclusive control of defendant and that the property damage occurred under such conditions that if proper precautions were observed, such an event would not have occurred. Plaintiff has no specific proof of acts or omissions to demonstrate defendant's negligence, however, the fact remains that the incident causing said property damage did occur. Therefore, the doctrine of res ipsa loquitur has been utilized in evaluating the evidence and given the proper weight it deserves. Defendant has failed to provide any evidence sufficient to rebut the inference of negligence provided by res ipsa loquitur. Consequently, the doctrine of res ipsa loquitur applies to the instant action and defendant is liable to plaintiff for his property damage in the amount of $2,758.88, plus the $25.00 filing fee, which may be reimbursed as compensable damages 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).
{¶23} 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 $2,783.88, which includes reimbursement of the $25.00 filing fee. Court costs are assessed against the defendant.