[Cite as Peine v. Ohio Dept. of Transp., 2010-Ohio-2026.]

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

KELLIE C. PEINE 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2009-07806-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Kellie C. Peine, asserted her 2006 Volkswagen Jetta received 

windshield and body damage from roadway debris while she was traveling south “at the 

Rt 91 and Rt 271 split” in Lake County at approximately 6:55 a.m. on August 7, 2009. 

Plaintiff pointed out the roadway area where her damage occurred was located within a 

construction zone where the roadway surface had been milled in preparation for 

repaving. According to plaintiff, the debris that damaged her vehicle was left on the 

roadway surface after milling operations had been completed. Plaintiff described her 

particular damage incident relating that as she was driving on Interstate 271 “passing 

cars tires threw pebbles/stones that cracked my windshield and chipped the paint on my 

car.” Plaintiff contended the contractor who conducted the milling operations, The 

Shelly Company (Shelly), had failed to properly sweep the roadway after the surface 

had been milled. Plaintiff implied the damage to her automobile was proximately 

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

in failing to maintain the roadway construction area free of hazardous debris conditions. 

Consequently, plaintiff filed this complaint seeking to recover $1,130.19, the cost of 
automotive repair needed resulting from the August 7, 2009 incident. 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, Shelly. Defendant explained the particular project “dealt with 

resurfacing with asphalt concrete, pavement repair, guardrail installation, signing and 

other related work from Mayfield Hts on I-271 in Cuyahoga County to I-90 in Lake 

County.” Defendant further explained that from plaintiff’s description her damage 

incident occurred at state milepost 40.22 on Interstate 271, which is located at the 

northern part of the construction project in Lake County. Defendant asserted that 

Shelly, by contractual agreement, was responsible for any roadway damage 

occurrences or mishaps within the construction zone. Therefore, ODOT argued that 

Shelly 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. 

{¶ 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 

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 Shelly had any 

knowledge regarding debris on the roadway prior to plaintiff’s property damage event. 

ODOT records (copies submitted) report no calls or complaints were received at the 

ODOT Lake County Garage regarding debris conditions on Interstate 271 at or near 

milepost 40.22. Defendant noted the particular area of Interstate 271 “has an average 

daily traffic volume between 91,520 and 100,980, however, no other complaints were 

receive” regarding debris left on the roadway from milling operations. Defendant 

contended plaintiff failed to produce evidence establishing that her property damage 

was attributable to any conduct on either the part of ODOT or Shelly. ODOT records 

(copies submitted) show milling operations were conducted on Interstate 271 South 

from 7:00 p.m. on August 6, 2009 to 7:00 a.m. on August 7, 2009. Both ODOT and 

Shelly records (copies submitted) indicate the milled roadway surface was swept of 

debris by “2 power Brooms.” The ODOT “Inspectors Daily Report” (copy submitted) 

does not bear any notation concerning any problem with debris left on the roadway by 

the milling process. 

{¶ 6} 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 her vehicle was directly caused by 

construction activity of ODOT’s contractor prior to August 7, 2009. 

{¶ 7} 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. 

{¶ 8} Defendant advised plaintiff’s own description of the incident provides that 

her property damage was caused by unidentified third party motorists not affiliated with 

ODOT. Defendant related plaintiff made the statement in her complaint that “passing 

cars tires threw pebbles/stones that cracked my windshield and chipped the paint on my 

car.” Defendant has denied liability based on the particular premise that 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. 

{¶ 9} “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. 

{¶ 10} 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 

was the act of an unknown third party which did not involve ODOT. 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 that the damage-causing 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. Herman v. Ohio Dept. of Transp. (2006), 2006-

05730-AD. Plaintiff has failed to prove her property damage was proximately 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-Ohio-4190. 

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 

KELLIE C. PEINE 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2009-07806-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: 

Kellie C. Peine Jolene M. Molitoris, Director 

1142 Travis Drive Department of Transportation 

Madison, Ohio 44057 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

1/6 

Filed 1/22/10 

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