Opinion
Case No. 2019-01017JD
09-21-2020
DANIEL STOKOWSKI Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant
Magistrate Gary Peterson
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
{¶1} On April 17, 2020, defendant, Ohio Department of Transportation (ODOT), filed a motion for summary judgment pursuant to Civ.R. 56. Plaintiff did not file a response. The motion for summary judgment is now before the court for a non-oral hearing pursuant to L.C.C.R. 4. For the reasons stated below, the court hereby grants defendant's motion for summary judgment.
The time for filing a response was tolled by the Ohio Supreme Court, but the tolling order has subsequently expired. See 03/27/2020 Administrative Actions, 2020-Ohio-1166. --------
Standard of Review
{¶2} Motions for summary judgment are reviewed under the standard set forth in Civ.R. 56(C), which states, in part:
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation,"[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of material fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). To meet this initial burden, the moving party must be able to point to evidentiary materials of the type listed in Civ.R. 56(C). Id. at 292-293.
that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.
{¶3} If the moving party meets its initial burden, the nonmoving party bears a reciprocal burden outlined in Civ.R. 56(E), which states, in part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.
Factual Background
{¶4} According to the complaint, plaintiff was driving in the left lane on Interstate 480 westbound in heavy traffic when another motorist merged into plaintiff's lane. (Complaint, p. 1-2.) The roadway was wet because of recent rain and the area where plaintiff was driving was an active construction zone. Id. Due to the heavy traffic slowing abruptly in front of him, plaintiff swerved to the left to avoid hitting the vehicle encroaching in his lane. Id. Plaintiff's vehicle continued off the roadway through a gap in the construction wall and flipped over a four-foot embankment. Id. As a result, plaintiff's vehicle was totaled. Id. Plaintiff alleges that he spoke with an ODOT employee who said there had been "issues" with the construction wall in that area. Id. Plaintiff believes that if a construction wall had been present, he would not have flipped and totaled his vehicle. Id. Plaintiff requests $21,000.00 in damages. Id.
{¶5} Defendant argues that it fulfilled its duty to maintain the roadway in a reasonably safe condition for the motoring public. Specifically, defendant argues that the placement of construction barriers met the uniform traffic standards, that it had no notice of any hazard on the roadway, and that the accident occurred off the traveled surface of the roadway. Defendant further argues that plaintiff's own negligence in maintaining his vehicle, or the negligence of a third party, is the proximate cause of the accident.
{¶6} In support of its motion for summary judgment, defendant submitted the affidavit of Edwin Bais, a traffic crash report, and the affidavit of Kirk Gegick.
{¶7} According to Edwin Bais, Transportation Tech I for District 12, plaintiff's accident occurred near SLM 20.40 and SLM 20.60. (Bais Aff., ¶ 3.) Bais asserts that the Ohio Manual of Uniform Traffic Control Devices (OMUTCD) permits the barrel configuration that was present at the location of plaintiff's accident. Id., at ¶ 4. Furthermore, Bais states that the placement of orange construction barrels in the construction zone was in accordance with design standards. Id., at ¶ 5.
{¶8} Bais also reviewed ODOT's telephone logs, radio logs, complaint system records, and work history during the six months preceding plaintiff's accident, and he did not find any prior notice of issues or hazards in the construction zone where plaintiff had his accident. Id., at ¶ 8. Furthermore, on June 19, 2020, ODOT's maintenance personnel had previously inspected the roadway in the area where plaintiff's accident occurred and found no issues or hazards with the construction zone. Id., at ¶ 10.
{¶9} Kirk Gegick, ODOT Project Manager/Area Engineer for District 12, assists ODOT's Central Office by aiding in the review, design, and operation of Ohio's transportation system. (Gegick Aff., ¶ 2-3.) According to Gegick, the roadway under construction where plaintiff had his accident was classified as "Condition II", which only required barrels because it was a "freeway with a posted maximum speed of 55 miles per hour, the drop-off at issue was greater than 24-inches and was located between 4 feet and 12 feet from the traveled lane, and the accident occurred during the daytime hours." Id., at ¶ 6; Exhibit A.
Law and Analysis
{¶10} In order for plaintiff to prevail on his claim of negligence, he must prove by a preponderance of the evidence that defendant owed him a duty, that defendant's acts or omissions resulted in a breach of that duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 8. "It is well settled that in order for a person to be entitled to recover in damages for a claimed negligent injury, the act complained of must be the direct and proximate cause of the injury." Strother v. Hutchinson, 67 Ohio St.2d 282, 286, 423 N.E.2d 467 (1981)
{¶11} Generally, ODOT 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 (10th Dist.1976). However, ODOT is not an insurer of the safety of state highways. Rhodus v. Ohio Dept. of Transp., 67 Ohio App.3d 723, 730 (10th Dist.1990). ODOT may be liable for an off-roadway condition only if that condition jeopardizes the safety of the ordinary traffic on the roadway. Steele v. Ohio Dept. of Transp., 162 Ohio App.3d 30, 2005-Ohio-3276, 832 N.E.2d 764 (10th Dist.); Manufacturer's Natl. Bank of Detroit v. Erie Cty. Road Comm., 63 Ohio St.3d 318, 587 N.E.2d 819 (1992). This duty is owed both under normal traffic conditions and during highway construction projects. Roadway Express, Inc. v. Ohio Dept. of Transp., 10th Dist. Franklin No. 00AP-1119, 2001 Ohio App. LEXIS 2854 (June 28, 2001). However, it is well-settled that "ODOT cannot guarantee the same level of safety during a highway construction project as it can under normal traffic conditions. * * * ODOT is, nonetheless, required to provide the traveling public with a reasonable degree of safety in construction zones." Basilone v. Ohio Dept. of Transp., 10th Dist. Franklin No. 00AP-811, 2001 Ohio App. LEXIS 507, *7-8 (Feb. 13, 2001), citing Feichtner v. Ohio Dept. of Transp., 114 Ohio App.3d 346, 683 N.E.2d 112 (10th Dist.1995).
{¶12} "[A] court must look at the totality of the circumstances in determining whether ODOT acted sufficiently to render the highway reasonably safe for the traveling public during the construction project." Id. at *8. "The scope of ODOT's duty to ensure the safety of state highways is more particularly defined by the Ohio Manual of Uniform Traffic Control Devices [OMUTCD], which mandates certain minimum safety measures." State Farm Auto. Ins. Co. v. Ohio Dept. of Transp., 10th Dist. Franklin Nos. 98AP-936, 98AP-1028, 98AP-960, 98AP-1536, 98AP-976, 99AP-48, 1999 Ohio App. LEXIS 2601 (June 8, 1999). "[N]ot all portions of the manual are mandatory, thereby leaving some areas within the discretion and engineering judgment of [defendant.]" Leskovac v. Ohio Dept. of Transp., 71 Ohio App.3d 22, 27, 593 N.E.2d 9 (10th Dist.1990), citing Perkins v. Ohio Dept. of Transp., 65 Ohio App.3d 487, 491, 584 N.E.2d 794 (10th Dist.1989). Furthermore, the common law of Ohio also imposes a duty of reasonable care upon motorists, which includes the responsibility to observe the environment in which one is driving. Hubner v. Sigall, 47 Ohio App.3d 15, 17, 546 N.E.2d 1337 (10th Dist.1988).
{¶13} For liability to attach to defendant for damages caused by hazards upon the roadway, plaintiff must demonstrate that defendant had actual or constructive notice of the existence of such hazard. McClellan v. Ohio Dept. of Transp., 34 Ohio App.3d 247, 517 N.E.2d 1388 (10th Dist.1986). "Actual notice exists when the relevant information has been permanently communicated to or received by the noticed party in the form of express or direct information." Sparre v. Ohio Dept. of Transp., 2013-Ohio-4153, 998 N.E.2d 883, ¶ 23 (10th Dist.). "Constructive notice is that notice which the law regards as sufficient to give notice and is regarded as a substitute for actual notice." Id. To support an inference of constructive notice, plaintiff must submit evidence sufficient to indicate that a condition existed for a length of time that would reasonably justify the conclusion that defendant should have acquired knowledge of its existence. See Pressley v. Norwood, 36 Ohio St.2d 29, 32, 303 N.E.2d 81 (1973).
{¶14} The "proximate cause" element is often difficult to define and is dependent upon the facts of a particular case. Strother at 287. Generally, proximate cause is established "where an original act is wrongful or negligent and in a natural and continuous sequence produces a result which would not have taken place without the act." Id. Furthermore, "the fact that some other act unites with the original act to cause injury does not relieve the initial offender from liability." Id., quoting Clinger v. Duncan, 166 Ohio St. 216, 223, 141 N.E.2d 156 (1957). However, "what constitutes a 'natural and continuous sequence' is insusceptible of determination other than in the context of a particular case." Ornella v. Robertson, 14 Ohio St.2d 144, 151, 237 N.E.2d 140 (1968).
{¶15} Furthermore, "the issue of proximate cause is ordinarily one for determination by the jury." Id. However, proximate cause may be determined as a matter of law "where reasonable minds could not differ with respect to the matter because the circumstances clearly indicate an obvious cause and effect relationship." Id. Additionally, judgment must be given in favor of the defendant as a matter of law when the plaintiff alleges no facts justifying any reasonable inference that the acts or omissions of the defendant would constitute the proximate cause of the injury. Sullivan v. Heritage Lounge, 10th Franklin Dist. No. 04AP-1261, 2005-Ohio-4675, ¶ 33. Moreover, "[i]t is well settled that the issue of proximate cause is not subject to speculation and that conjecture as to whether a breach caused the particular damage is insufficient as a matter of law." Mills v. Best Western Springdale, 10th Dist. Franklin No. 08AP-1022, 2009-Ohio-2901, ¶ 20 (citations omitted). Consequently, the defendant is entitled to summary judgment as a matter of law "[i]f the plaintiff's quantity or quality of evidence on proximate cause requires speculation and conjecture to determine the cause of the event." Id.
{¶16} Upon review of the uncontradicted evidence submitted by defendant, the court finds that there are no genuine issues of material fact and that defendant is entitled to judgment as a matter of law. Indeed, the only evidence before the court is that the design standard in the construction zone and placement of any construction barriers complied with the OMUTCD. (Defendant's Exhibit A; Bais Aff., ¶ 4-5; Gegick Aff., ¶ 6.) Furthermore, a review of the evidence reveals that ODOT's work crews inspected the construction site on June 19, 2019, two days before plaintiff's accident, and found no issues or hazards with the construction site. (Bais Aff., ¶ 10.) Moreover, Bais averred that, prior to plaintiff's June 21, 2019 accident, ODOT had no notice of any issues or hazards with the construction site in question. Id., at ¶ 8. Plaintiff has not submitted any evidence to dispute the fact that the construction site design and barrel placement complied with the standards in the OMUTCD and that defendant did not have prior notice of any issues or hazards where the accident occurred.
{¶17} The court further finds that there are no issues of fact regarding the proximate cause of plaintiff's accident. It is undisputed that plaintiff's accident occurred off the traveled portion of the roadway. The dangerous condition plaintiff alleges to have caused his accident was located well off the traveled portion of the roadway and plaintiff has not submitted any evidence to suggest that the barrels and/or drop-off in question jeopardized the safety of traffic on the traveled portion of the roadway.
{¶18} In his complaint, plaintiff alleges that another vehicle encroached in his lane and that the slowing rush hour traffic in front of him caused him to swerve his vehicle off the roadway to avoid a collision. See Complaint. The accident report submitted by defendant corroborates plaintiff's allegations that the accident resulted due to a vehicle encroaching in plaintiff's lane. (Defendant's Exhibit B.) Thus, the proximate cause of the accident was either plaintiff's failure to maintain his vehicle or the encroachment of a third-party's vehicle.
{¶19} Accordingly, defendant's motion for summary judgment shall be granted.
Conclusion
{¶20} Based upon the foregoing, the court concludes that there are no genuine issues of material fact and that defendant is entitled to judgment as a matter of law. Defendant's motion for summary judgment is GRANTED and judgment is hereby rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
/s/_________
PATRICK M. MCGRATH
Judge Filed September 21, 2020
Sent to S.C. Reporter 11/23/20