Opinion
2020-00218AD
07-16-2020
JOSEPH ZEMENSKI Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant
Sent to S.C. Reporter 12/2/21
MEMORANDUM DECISION
{¶1} Joseph Zemenski ("plaintiff") filed this claim against the Ohio Department of Transportation ("ODOT"), to recover damages which occurred on March 13, 2020, when his 2004 Buick LeSabre was struck by a temporary traffic sign, while traveling on Interstate Route ("IR") 280 in Lucas County, Ohio. This road is a public road maintained by ODOT. Plaintiffs vehicle sustained damages in the amount of $1,631.91. 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:
That the plaintiffs motor vehicle received damages as a result of coming into contact with a dangerous condition on a road maintained by ODOT.
That ODOT knew or should have known about the dangerous road condition.
That ODOT, armed with this knowledge, failed to repair or remedy the dangerous condition in a reasonable time.
{¶3} 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.
{¶4} In order for a plaintiff to recover in any suit involving injury proximately caused by roadway conditions including signage, plaintiff must prove that either: 1) defendant had actual or constructive notice of the sign's condition and failed to respond in a reasonable time or responded in a negligent manner, or 2) that defendant, in a general sense, maintains its highways negligently. Denis v. Department of Transportation, 75-0287-AD (1976). Generally, defendant is only liable for roadway conditions of which it has notice, but fails to correct. Bussard v. Dept. of Transp., 31 Ohio Misc.2d 1, 31, 507 N.E.2d 1179 (1986). However, proof of a dangerous condition is not necessary when defendant's own agents actively cause such condition, as it appears to be the situation in the instant matter. See 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). In this case, plaintiff asserted the wind blew defendant's spring supported sign into his vehicle. Plaintiff noted no sandbags were used to secure the sign.
{¶5} This court in Wright v. Ohio Department of Natural Resources, Ct. of Cl. No. 2003-11755-AD, 2004-Ohio-3581 and Colbert v. Ohio Department of Transportation, Ct. of Cl. No. 2005-08654-AD, 2006-Ohio-189, held that if the damage plaintiff sustained was attributable solely to an "Act of God," no negligence can be found. However, in those cases wind speeds were 35 mph to 43 mph and 40 mph to 80 mph respectively. In the case at bar, normal precautions should have prevented a temporary traffic sign from being blown into the traveled portion of the highway.
{¶6} This court, as the trier of fact, determines questions of proximate causation. Shinaver v. Szymanski, 14 Ohio St.3d 51, 471 N.E.2d 477 (1984).
{¶7} In the Investigation Report, ODOT stated that the location of the incident was on IR 280 in Lucas County at mile marker 10.4. This section of the roadway has an average daily traffic count of 55, 750 vehicles. Despite this volume of traffic, ODOT had received no notice of any loose signage on this section of the road. Within the past six months, ODOT had also conducted one hundred twenty-four (124) maintenance operations on IR 280 in Lucas County without discovering any loose signage. If loose signage had existed for any appreciable length of time on this section of the roadway, it is probable that it would likely have been discovered by ODOT's work crews.
IN THE COURT OF CLAIMS OF OHIO
{¶8} Plaintiff filed a response to defendant's Investigation Report. Plaintiff included a copy of a weather report from Toledo Express Airport Station, which revealed wind speed at the time of the incident was less than 23 miles per hour with gusts less than 30 miles per hour.
{¶9} The Ohio Manual on Uniform Traffic Control Devices for Streets and Highways, 7A-5(c)(1), which in relevant part states:
"Adequate warning, delineation, and channelization by means of proper pavement marking, signing, and use of other devices which are effective under varying conditions of light and weather should be provided to assure the motorist of positive guidance in advance of and through the work area."
{¶10} This court, as the trier of fact, determines questions of proximate causation. Shinaver v. Szymanski, 14 Ohio St.3d 51, 471 N.E.2d 477 (1984).
{¶11} The credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The court is free to believe or disbelieve, all or any part of each witness's testimony State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548 (1964). In the instant action, the trier of fact finds that the statements of plaintiff concerning the origin of the damage-causing condition are persuasive. Consequently, defendant is liable to plaintiff for the damages claimed, $1,631.91, plus the $25.00 filing fee which may be reimbursed as compensable costs 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).
{¶12} The court finds pursuant to section (F) of the Chief Justice's tolling entry of March 27, 2020, that filing a Motion for Court Review or waiver "requires immediate attention." Accordingly, within thirty (30) days, either party may file a Motion for Court Review or a waiver. Failure to comply will result in the decision rendered being final.
ENTRY OF ADMINISTRATIVE DETERMINATION
{¶13} 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 $1,656.91, which includes reimbursement of the filing fee. Court costs are assessed against defendant.