[Cite as Greissing v. Ohio Dept. of Transp., 2010-Ohio-2029.]

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

CATHERINE GREISSING 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-08284-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Catherine Greissing, filed this action against defendant, 

Department of Transportation (ODOT), contending her 2006 Mercedes-Benz C280 was 

damaged as a proximate cause of negligence on the part of ODOT in maintaining a 

roadway construction area on Interstate 77 in Cuyahoga County. In her complaint, 

plaintiff recorded her particular damage incident occurred at approximately 10:15 a.m. 

on Sunday, August 30, 2009.1

 Plaintiff provided a written description of her recollection 

of her property damage event noting: “I was on the ramp at Pleasant Valley - 77S a 

construction truck pulled out in front of me-due to the bumpy road-he dropped out a 

large rock I had no room to avoid the rock as on one side was orange barrels and on 

the other concrete barriers. I hit the rock and immediately got a flat tire.” Plaintiff 

related there was no room on the roadway ramp to pull over due to the traffic control 

barrels and concrete barriers. Plaintiff recalled a police car subsequently arrived at the 

 1

 Plaintiff later acknowledged she mistakenly indicated in her complaint that her damage event 

occurred on August 30, 2009. After defendant filed an investigation report defending this action based on 

the reported August 30, 2009 incident date, plaintiff filed a response, advising that her damage incident 

actually occurred on Thursday, August 27, 2009. Defendant then filed documentation defending this 
scene “and followed me with his lights on to the rockside road exit.” According to 

plaintiff, the driver of the construction truck that deposited the rock on the roadway ramp 

did not stop. Plaintiff expressed the opinion that “I do not believe he/she (truck driver) 

was aware that rocks were falling out (of the truck bed).” Plaintiff did not provide any 

identification regarding the owner of the truck or did not produce evidence to establish 

the truck was part of roadway construction activity on Interstate 77. Regardless, plaintiff 

has asserted defendant should bear liability for the damage repair costs for her car. 

Plaintiff seeks damages in the amount of $598.98, the complete cost of automotive 

repair expense she incurred as a result of driving over a rock deposited on the roadway 

entrance ramp. The filing fee was paid. 

{¶ 2} Defendant acknowledged that the 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 construction project “dealt with grading, draining and paving 

with asphalt concrete to thirteen (13) structures on I-77" between state mileposts 148.98 

to 155.55 in Cuyahoga County (plaintiff’s incident occurred at approximately milepost 

153.15). Defendant asserted that Kokosing, by contractual agreement, was responsible 

for any roadway damage occurrence mishaps within the construction zone. Therefore, 

defendant argued 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, she must prove, by a 

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

duty, and that the breach proximately caused her 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 she suffered a loss 

 

action based on the revised August 27, 2009 occurrence date. 
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 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 highway 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 negligence 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 contentions 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. The 

evidence presented does not establish plaintiff’s property damage was proximately 

caused by ODOT’s contractor engaging in roadway construction activity. 

{¶ 5} 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 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. 

{¶ 6} Defendant has contended plaintiff did not offer evidence to prove her 
damage was caused by conduct attributable to either ODOT or Kokosing. Defendant 

asserted the rock debris plaintiff’s car struck “was displaced by a third party and it was 

not a state truck (owed by ODOT) or a truck from Kokosing.” Defendant has denied 

liability based on the particular premise it had no duty to control the conduct of a third 

person except in cases where a special relationship exists between defendant and 

either plaintiff or the person whose conducts needs to be controlled. Federal Steel & 

Wire Corp. v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However, 

defendant may still bear liability if it can be established if some act or omission on the 

part of ODOT was the proximate cause of plaintiff’s injury. 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. 

{¶ 7} Defendant submitted a copy of an e-mail from Kokosing Claims Specialist, 

Pamela LeBlanc, referencing her investigation into the incident forming the basis of this 

claim originally reported as occurring on August 30, 2009 at approximately 10:15 a.m. 

LeBlanc recorded Kokosing personnel were not working in the area on August 30, 2009 

until 6:30 p.m. when a paving crew began operations. LeBlanc further reported all 

records were checked and no ODOT personnel or Kokosing subcontractors were 

working in the Interstate 77 construction zone during the “daytime hours” of August 30, 

2009. LeBlanc suggested the truck that deposited the rock on the roadway which 

plaintiff’s car struck could have been a vehicle not affiliated with either Kokosing or 

ODOT. 

{¶ 8} Plaintiff filed a response acknowledging she made a mistake when she 

originally reported her property damage event occurred on August 30, 2009. Plaintiff 

revised the date of the occurrence to August 27, 2009 and submitted a copy of an 

incident report generated by the Independence Police Department verifying her damage 

event occurred on August 27, 2009 “just north of 77 on ramp.” The approximate time on 

August 27, 2009 the Independence Police Department received the report of plaintiff’s 

damage incident was approximately 10:44:30 a.m. 

{¶ 9} Upon receiving the information, plaintiff revised the date of her property 

damage occurrence, defendant submitted a document in reply. Defendant contended 

plaintiff did not offer any evidence to prove the truck that deposited the rock on the 

roadway was connected to either Kokosing or ODOT. Defendant submitted another 
copy of an e-mail from Pam LeBlanc who noted the construction truck plaintiff 

referenced “could have been a subcontractor’s truck, an independent hauler, a delivery 

truck, or any other truck traveling through this zone, not even associated with this 

project.” 

{¶ 10} “If any 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. 

{¶ 11} Plaintiff has failed to establish her damage was proximately caused by any 

negligent act or omission on the part of ODOT. In fact, the sole cause of plaintiff’s injury 

from the evidence available was the act of an unknown third party which did not involve 

ODOT or its agents. Plaintiff has failed to prove, by a preponderance of the evidence, 

that defendant failed to discharge a duty owed to plaintiff, or that plaintiff’s injury was 

proximately caused by defendant’s negligence. Plaintiff failed to show the damagecausing object at the time of the damage incident was connected to any conduct under 

the control of defendant or any negligence on the part of defendant or its agents. 

Herman v. Ohio Dept. of Transp. (2006), 2006-05730-AD. Plaintiff has failed to prove 

her damage was caused by any negligent act or omission on the part of ODOT or its 

agents. See Wachs v. Dept. of Transp., Dist. 12, Ct. of Cl. No. 2005-09481-AD, 2006-

Ohio-7162; Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-AD, 2008-Ohio4190. 

 

 

 

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 

CATHERINE GREISSING 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-08284-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 defendant. Court costs are assessed against plaintiff. 

 

 ________________________________ 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Catherine Greissing Jolene M. Molitoris, Director 

1718 Berwick Drive Department of Transportation 

Brunswick, Ohio 44212 1980 West Broad Street 

 Columbus, Ohio 43222 

RDK/laa 

1/13 

Filed 1/27/10 

Sent to S.C. reporter 5/7/10