[Cite as Morris v. Ohio Dept.. of Transp., 2010-Ohio-3147.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

MICHAEL P. MORRIS 

 Plaintiff 

 v. 

OHIO DIVISION OF TRANSPORTATION 

 Defendant 

Case No. 2009-08501-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Michael P. Morris, filed this action contending his company car, a 

2010 Chevrolet Malibu was damaged on September 25, 2009 as a proximate cause of 

negligence on the part of defendant, Department of Transportation (ODOT), in 

maintaining State Route 608 in an area where roadway construction activity was being 

conducted. Specifically, plaintiff explained the vehicle was damaged when the front 

facia shield on the car struck a transition area on the roadway where a section of 

pavement that had been milled met an area where existing pavement remained intact. 

Plaintiff described this roadway transition area as “a very pronounced lip” and observed 

that when the front end of the car contacted with the transition the impact pushed the 

facia shield into the vehicle’s air conditioning condenser damaging both parts. Plaintiff 

located the damage-causing incident at “southbound on Route 608 [a]t the junction of 

Lake (County) and Geauga (County) just before Radcliff Road.” Plaintiff recalled there 

were no construction workers present at the time of the property damage event 

(approximately 10:00 p.m. on Friday, September 25, 2009) and he was “driving below 

the posted speed limit due to the darkness, the construction, and the deer in the area.” 
Plaintiff filed this complaint seeking to recover damages in the amount of $816.85, the 

cost of automotive repair expense he incurred as a result of the described incident. 

Plaintiff advised the 2010 Chevrolet Malibu is owned by his employer, Tim Lally 

Chevrolet, Inc., but he is responsible for property damage to the vehicle “up to 

$1,000.00.” The $25.00 filing fee was paid. 

{¶ 2} Defendant acknowledged that the stated area where plaintiff’s described 

damage event occurred was located within the limits of a construction project under the 

control of ODOT contractor, Kokosing Construction Company, Inc. (Kokosing). 

Defendant explained the particular project “dealt with grading, draining, planning and 

resurfacing with asphalt concrete on SR 608 in Lake County.” From plaintiff’s 

description of the damage event, defendant located the incident “close to milepost 0.0 

which is the beginning of this project in Lake County.” Defendant asserted Kokosing, by 

contractual agreement, was responsible for any roadway damage, occurrences, or 

mishaps within the construction zone. Therefore, ODOT argued that Kokosing is the 

proper party defendant in this action. Defendant implied all duties, such as the duty to 

inspect, the duty to warn, the duty to maintain, and the duty to repair defects were 

delegated when an independent contractor takes control over a particular section of 

roadway. All work by the contractor was to be performed in accordance with ODOT 

mandated specifications and requirements and subject to ODOT approval. 

Furthermore, defendant maintained an onsite personnel presence in the construction 

project area. 

{¶ 3} For plaintiff to prevail on a claim of negligence, he must prove, by a 

preponderance of the evidence, that defendant owed him a duty, that it breached that 

duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy 

Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding 

Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff 

has the burden of proving, by a preponderance of the evidence, that he suffered a loss 

and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio 

State University (1977), 76-0368-AD. However, “[i]t is the duty of a party on whom the 

burden of proof rests to produce evidence which furnishes a reasonable basis for 

sustaining his claim. If the evidence so produced furnishes only a basis for a choice 

among different possibilities as to any issue in the case, he fails to sustain such 
burden.” Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio 

St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed. 

{¶ 4} Defendant has the duty to maintain its highways in a reasonably safe 

condition for the motoring public. Knickel v. Ohio Department of Transportation (1976), 

49 Ohio App. 2d 335, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an 

insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 

112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67 

Ohio App. 3d 723, 588 N.E. 2d 864. 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-151. Despite defendant’s 

contention that ODOT did not owe any duty in regard to the construction project, 

defendant was charged with duties to inspect the construction site and correct any 

known deficiencies in connection with particular construction work. See Roadway 

Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119. 

{¶ 5} Alternatively, defendant argued that neither ODOT nor Kokosing had any 

knowledge “of any problems with uneven pavement on this project” prior to plaintiff’s 

damage occurrence. Defendant related ODOT “records (copies submitted) indicate that 

no calls or complaints were received at the Lake County Garage for SR 608 regarding 

uneven pavement prior to Plaintiff Morris’ incident.” Defendant advised the specific 

portion of State Route 608 has an average daily traffic of over 3000, yet no complaints 

were received concerning uneven pavement problems before September 25, 2009. 

Defendant did not provide any evidence to establish when the pavement on State Route 

608 was initially milled in preparation for repaving. Evidence submitted shows the 

contract between ODOT and Kokosing was finalized on August 10, 2009. Therefore, 

the trier of fact shall infer State Route 608 was milled at sometime between August 10, 

2009 and September 25, 2009. Defendant contended plaintiff failed to produce 

evidence establishing the damage to the 2010 Chevrolet Malibu was attributable to 

conduct on either the part of ODOT or Kokosing. 

{¶ 6} Defendant submitted a copy of an e-mail from Kokosing Claims 

Specialists, Pamela LeBlanc, in response to plaintiff’s allegations of a hazardous 
roadway condition created on State Route 608 from the milled pavement. LeBlanc 

noted that she spoke with Kokosing Project Superintendent, Lee Schloss who informed 

her “Bump” signage was installed at the area of State Route 608 where the milled 

roadway transitioned to existing pavement. LeBlanc also noted that Schloss reported a 

butt joint of 1 1/4" was placed at the transition site to provide for safe travel and ODOT 

did not designate any maintenance of traffic for the specific roadway area. LeBlanc 

insisted “[s]afe travel through this work zone was provided and appropriate signage was 

in place.” Furthermore, in reference to the purported incident site defendant submitted 

a copy of an e-mail from ODOT Project Engineer, Neal Moscato, who advised “[t]he butt 

joint in that area was 1 and 1⁄2 inches deep.” Moscato also provided with his 

correspondence a “Standard Construction Drawing B P 3.1" (copy submitted) used as a 

standard for installation of butt joints on milled roadway surfaces to merge milled 

pavement with existing pavement. Defendant maintained the ODOT specifications 

depicted in the drawing were utilized by Kokosing upon milling State Route 608. 

Moscato expressed the opinion that he could not comprehend any vehicle “of legal 

clearance or roadworthiness getting damaged by that exposure” at the roadway 

transition site where the butt joint was installed. Defendant did not provide evidence to 

show the specific date the butt joint was installed at milepost 0.00 on State Route 608 in 

Lake County. 

{¶ 7} Plaintiff filed a response asserting that the butt joint referenced in the 

Moscato and LeBlanc e-mails was not installed until after his September 25, 2009 

property damage event. Plaintiff related “[s]everal days after the incident (but before I 

filed any type of claim) the bump in the road was amended with an asphalt filler to 

reduce the amount of the lip.” Plaintiff questioned “[i]f the butt joint was within 

guidelines, then why was the asphalt added?” Plaintiff again contended the 2010 

Chevrolet Malibu was damaged as a proximate cause of negligence in failing to provide 

for safe transition travel on the roadway from a milled area to existing intact pavement. 

{¶ 8} Generally, in order to prove a breach of the duty to maintain the highways, 

plaintiff must prove, by a preponderance of the evidence, that defendant had actual or 

constructive notice of the precise condition or defect alleged to have caused the 

accident. McClellan v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388. 

Defendant is only liable for roadway conditions of which it has notice but fails to 
reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR 

64, 507 N.E. 2d 1179. However, proof of notice of a dangerous condition is not 

necessary when defendant’s own agents actively cause such condition. See Bello v. 

City of Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the 

syllabus; Sexton v. Ohio Department of Transportation (1996), 94-13861. Plaintiff, in 

the instant claim, has alleged that the damage to the vehicle was directly caused by 

construction activity of ODOT’s contractor prior to September 25, 2009. No evidence 

was provided to show ODOT inspected the roadway area after milling operations were 

completed. No evidence was submitted to establish when the roadway surface near 

milepost 0.00 on State Route 608 was initially milled prior to September 25, 2009 or that 

if a butt joint of any height was installed at the time milling was completed. 

{¶ 9} “If an injury is the natural and probable consequence of a negligent act 

and it is such as should have been foreseen in the light of all the attending 

circumstances, the injury is then the proximate result of the negligence. It is not 

necessary that the defendant should have anticipated the particular injury. It is 

sufficient that his act is likely to result in an injury to someone.” Cascone v. Herb Kay 

Co. (1983), 6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber 

Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 

N.E. 327. This court, as trier of fact, determines questions of proximate causation. 

Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477. 

{¶ 10} In order to find liability for a damage claim occurring in a construction 

area, the court must look at the totality of the circumstances to determine whether 

ODOT acted in a manner to render the highway free from an unreasonable risk of harm 

for the traveling public. Feichtner v. Ohio Dept. of Transp. (1995), 114 Ohio App. 3d 

346, 683 N.E. 2d 112. In fact, the duty to render the highway free from an 

unreasonable risk of harm is the precise duty owed by ODOT to the traveling public 

both under normal traffic conditions and during highway construction projects. See e.g. 

White v. Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, 42, 564 N.E. 2d 462. Plaintiff 

has provided sufficient evidence to prove a known hazardous condition existed on the 

roadway after ODOT specified operations were completed and neither ODOT nor its 

agents timely corrected the condition. See Mullins v. Ohio Dept. of Transp., Dist. 8, Ct. 

of Cl. No. 2008-11371-AD, 2009-Ohio-5110. 
{¶ 11} The credibility of witnesses and the weight attributable to their testimony 

are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 

39 O.O. 2d 366, 227 N.E. 2d 212, 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 (1964), 

176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. 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, $816.85, plus the $25.00 filing fee which may be reimbursed as compensable 

costs pursuant to R.C. 2335.19. See Bailey v. Ohio Department of Rehabilitation and 

Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990. 

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

MICHAEL P. MORRIS 

 Plaintiff 

 v. 

OHIO DIVISION OF TRANSPORTATION 

 Defendant 

Case No. 2009-08501-AD 

Deputy Clerk Daniel R. Borchert 

ENTRY OF ADMINISTRATIVE

DETERMINATION

 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 plaintiff in the amount of $841.85, which includes the filing fee. Court costs are 

assessed against defendant. 

 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Michael P. Morris Jolene M. Molitoris, Director 

9905 Tudor Pl. Department of Transportation 

Chardon, Ohio 44024 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

2/25 

Filed 3/5/10 

Sent to S.C. reporter 7/1/10