Opinion
2021-00631AD
06-29-2022
MARK TIERNO Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant
Sent to S.C. Reporter 1/18/23
MEMORANDUM DECISION
{¶1} Mark Tierno ("plaintiff) filed this claim against the defendant, Ohio Department of Transportation ("ODOT"), to recover damages which occurred when his 2003 BMW M3 was struck by debris on September 11, 2021, while traveling past road construction being performed by Chagrin Valley Asphalt on the exit lane from State Route ("SR") 2 to SR 44 South, in Lake County, Ohio. This road is a public road maintained by ODOT. Plaintiff's vehicle sustained damages in the amount of $6,884.59. Plaintiff submitted the $25.00 filing fee.
{¶2} The evidence in this case reveals that the area where plaintiffs damage-causing event occurred was in a construction zone. ODOT had contracted with Chagrin Valley Paving, Inc. to do certain construction work on SR 2 at state mile marker 13.40.
{¶3} In the Investigation Report, ODOT indicates that the incident involving plaintiffs vehicle occurred on SR 2 in Lake County between county mile markers 13.0 to 14.0 (state mile markers 221.288 to 222.288). The agency reiterates that this area was part of an ongoing construction project being undertaken by Chagrin Valley Paving, Inc. The agency maintains that it was not aware of any debris in the construction area immediately prior to plaintiffs damage-causing event.
{¶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 Chagrin Valley Paving, Inc., by contractual agreement, was responsible for roadway damages, occurrences, or mishaps within the construction zone. Therefore, ODOT argues that Chagrin Valley Paving, Inc. 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 debris 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 Chagrin Valley Paving, 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 debris that damaged plaintiffs vehicle.
{¶12} Plaintiff did not file a response to defendant's Investigation Report. However, it should be noted that the damage-causing incident occurred in an active construction zone with workers present. Judge Sheeran in Floyd v. Ohio Department of Transportation, 2021-00156-AD (July 27, 2021), reversal jud (October 27, 2021), determined since members of the construction crew were present in the construction zone, where the road hazard was located, they knew or should have known of its presence in the roadway. As a result, Walsh Construction Company had constructive notice of the debris in the roadway and because "ODOT cannot delegate its duty to maintain roadways in a drivable condition, it was likewise on constructive notice..."
{¶13} In the case at bar, workers were also present in the construction zone when the debris traveled on the roadway. The duty of ODOT to maintain the roadway in a safe drivable condition is not delegable to an independent contractor involved in roadway construction. Clark v. ODOT, Ct. of Cl. No. 2019-00158AD, 2021-Ohio-2996 ¶ 7. Therefore, even though the court finds that although ODOT did not have actual notice, it had constructive notice of the damaging debris because of the presence of defendant's independent contractor on site of an active roadway construction project where the debris was located. See Floyd.
{¶14} Finally, it should be noted that plaintiffs damage-causing incident occurred on September 11, 2021, prior to the effective date of the amendment to R.C. 2743.02(D).
{¶15} Therefore, plaintiff is granted judgment in the amount of $6,884.59, 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).
{¶16} 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 $6,909.59, which includes reimbursement of the $25.00 filing fee. Court costs are assessed against the defendant.