[Cite as Norman v. Ohio Dept. of Transp., 2011-Ohio-3153.]

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

JAMES W. NORMAN 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-04548 

Judge Clark B. Weaver Sr. 

DECISION

{¶ 1} Plaintiff brought this action against defendant, the Ohio Department of 

Transportation (ODOT), alleging negligence. The issues of liability and damages were 

bifurcated and the case proceeded to trial on the issue of liability. 

{¶ 2} This case arises out of a motor vehicle accident that occurred on June 7, 

2007, at approximately 12:40 p.m., in Tuscarawas County, Ohio. At the time, plaintiff 

was operating a motorcycle southbound on State Route 93 (SR 93), en route from 

Barberton to West Lafayette. It was a clear, sunny day. In the area in which plaintiff 

was traveling, SR 93 is a winding, hilly, two-lane road that passes through a rural 

farming region; the posted speed limit was 55 miles per hour (mph). 

{¶ 3} Also at the time, ODOT was conducting a “spot berming” operation in an 

approximately seven-tenths of a mile stretch of SR 93’s southbound lane. The 

operation involved dumping aggregate material onto the roadway and grading it into the 

shoulder, after which a truck with a front-mounted rotary sweeper (sweeper truck) 
cleared any remaining debris off the road. The work progressed from area to area 

along the roadway as needed. 

{¶ 4} In order to perform its work, ODOT had in place a temporary traffic control 

(TTC) pattern that included orange warning signs on the approach at either end of the 

work zone alerting drivers first of “road work ahead,” then “one lane road ahead” and, 

lastly, a sign bearing the symbol for a flagger. The flaggers were then located at the 

north and south ends of the work zone, approximately three-tenths of a mile from where 

the work was being performed. Each flagger was equipped with a paddle sign bearing 

the word “stop” on one side and “slow” on the other. By communicating via radio, the 

flaggers alternately stopped traffic on their end of the work zone and, when cleared to 

do so by the other flagger, would turn their paddle to the “slow” sign and direct motorists 

to proceed into the open northbound lane. 

{¶ 5} Plaintiff testified that he did not see any of the three warning signs on the 

approach to the work zone. He related that the first indication that he had of any 

change in the normal traffic pattern was when he observed a flagger standing in the 

roadway. He stated that the flagger waved either his hand or a flag in an up and down 

motion, which he interpreted as a signal to slow down. Plaintiff then proceeded past the 

flagger in the north bound lane and slowed down as instructed, but he returned to the 

southbound lane at some point. He testified that he was traveling at approximately 30 

mph when he crested a blind hill and encountered a patch of loose gravel that was 

being cleared by the sweeper truck. Plaintiff maintains that the sweeper truck was 

backing up when he crested the hill and that, although he braked and swerved in an 

attempt to avoid a collision, he was unable to do so. Plaintiff’s motorcycle struck the 

right, rear of the sweeper truck before crashing into a ditch off the side of the roadway. 

He sustained extensive physical injuries to the left side of his body. 

{¶ 6} Plaintiff contends that ODOT was negligent in the implementation of its 

TTC pattern and that its sweeper truck driver was negligent in backing his vehicle up a 

blind hill. Defendant denies liability and contends that plaintiff’s own negligence was the 

sole proximate cause of his injuries. 

{¶ 7} In order to prevail upon a claim of negligence, plaintiff must prove by a 

preponderance of the evidence that defendant owed him a duty, that defendant’s acts or 
omissions resulted in a breach of that duty, and that the breach proximately caused his 

injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-2573, 

citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. 

{¶ 8} ODOT is subject to a general duty to exercise ordinary, reasonable care in 

maintaining state highways. White v. Ohio Dept. of Transp. (1990), 56 Ohio St.3d 39, 

42. “The scope of ODOT’s duty to ensure the safety of state highways is more 

particularly defined by the Ohio Manual of Uniform Traffic Control Devices [OMUTCD], 

which mandates certain minimum safety measures.” State Farm Auto. Ins. Co. v. Ohio 

Dept. of Transp. (June 8, 1999), Franklin App. Nos. 98AP-936, 98AP-1028, 98AP-960, 

98AP-1536, 98AP-976, 99AP-48. “[N]ot all portions of the manual are mandatory, 

thereby leaving some areas within the discretion and engineering judgment of 

[defendant.]” Leskovac v. Ohio Dept. of Transp. (1990), 71 Ohio App.3d 22, 27, citing 

Perkins v. Ohio Dept. of Transp. (1989), 65 Ohio App.3d 487, 491. 

{¶ 9} In support of his claims, plaintiff produced evidence that, when his counsel 

contacted ODOT regarding what traffic control measures had been in place on the date 

of the accident, he was provided with a copy of the OMUTCD’s 6C-3 “One-Lane, TwoWay Traffic Taper” specifications. (Plaintiff’s Exhibit 7.) Plaintiff also produced 

evidence that, when his counsel again contacted ODOT requesting clarification as to 

whether the 6C-3 layout was an example of an appropriate plan or whether it was the 

actual plan that had been in place at the time, ODOT responded that the 6C-3 was, in 

fact, the TTC plan that had been in place. (Plaintiff’s Exhibit 9.) The 6C-3 consists of all 

of the above-described warning signs and use of flaggers, but also includes a series of 

“channelizing” traffic cones placed first in a taper formation from the right berm of the 

roadway to the center line, then continuing along the center line up to and past the work 

activity, and finally tapering off to the right berm at the end of the work zone. 

{¶ 10} In further support of his claims, plaintiff relies upon ODOT’s “Guidelines for 

Traffic Control in Work Zones.”1

 The handbook contains a matrix diagram of 

“Suggested Temporary Traffic Control For Work Activities” that provides two options for 

 1

The handbook summarizes certain guidelines set forth in the OMUTCD. The introduction specifies that “[t]his 

information is intended to provide the principles of proper work zone traffic control, but is not a standard. 

Part 6 of the OMUTCD contains the standards for work zone traffic control.” (Defendant’s Exhibit A, Page 

1.) 
establishing a TTC layout in a spot berming operation: a TA-10 or a TA-17. 

(Defendant’s Exhibit A.) The TA-10 option reflects the 6C-3 pattern. The TA-17 option 

utilizes a “shadow” vehicle in lieu of cones and flaggers. A shadow vehicle is equipped 

with strobe and flashing lights and may also include a truck-bed mounted, rear-facing 

arrow sign or other warning message to provide additional traffic direction. A shadow 

truck closely follows the work vehicles and serves to alert drivers of the exact work 

activity area. 

{¶ 11} Notwithstanding the information plaintiff received from ODOT, there is no 

question that channelizing cones were not used in the TTC layout at the time of the 

accident. There was testimony that a shadow vehicle, albeit without an additional truckmounted warning sign, was parked at the crest of the hill north of the sweeper truck. 

The truck appears in several of the photographs which were taken by the Ohio State 

Highway Patrol (OSHP) trooper who responded to the scene. The evidence is 

conflicting as to whether the truck was in that location when the accident occurred. 

Based upon the information provided by ODOT and the OMUTCD guidebook, plaintiff 

argues that ODOT failed to comply with its own standards in providing a safe and 

effective TTC in the area where plaintiff’s accident occurred. 

{¶ 12} Arthur Fondriest, ODOT’s project foreman on the date of the incident, 

chose and put into place the TTC layout for the work zone. According to Fondriest, the 

TTC that he chose was the same type that he had used for spot berming work for the 29 

years that he was employed by ODOT. He testified that traffic cones are not 

appropriate for a “mobile operation” such as spot berming because the TTC must be 

repeatedly set up and taken down as the work progresses. He explained that the goal 

of a TTC layout is to protect not only motorists but also the ODOT work crew, and that 

repeated placement and movement of cones is both hazardous for workers as well as a 

distraction for motorists. According to Fondriest, cones interfere with the operation of 

both the grader and sweeper trucks in a berming operation. With respect to the 

sweeper truck, Fondriest testified that it typically requires more than one pass over the 

roadway to clear all of the debris and that, in order to make a second pass, the truck 

 
must make a “U” turn into the opposite lane, drive back to an appropriate starting point, 

make a “U” turn back into the work lane, and then begin sweeping again. 

{¶ 13} Fondriest insisted that the 6C-3 layout is the pattern used for “ditching” or 

tree trimming where the worksite remains in place for longer periods and does not 

involve vehicles moving in and out of the work lane. Fondriest further noted that the 

TTC that he used included everything in the 6C-3 layout except the cones, but that he 

had added a shadow vehicle. Fondriest testified that it was his truck that was shown in 

the OSHP photographs, and that he had parked it in the southbound lane at the crest of 

the blind hill, with its strobe lights activated, behind the area where the sweeper truck 

was operating. 

{¶ 14} Timothy Tuttle, plaintiff’s accident reconstruction expert, calculated that 

plaintiff was traveling at approximately 29 to 34 mph, in the southbound lane, when his 

motorcycle began to skid. He opined that it was “impossible” that Fondriest’s truck was 

parked at the crest of the hill at the time of the accident. His analysis of the physical 

evidence, including the skid marks shown in the OSHP photographs, was that plaintiff 

would not have had sufficient time to travel from the southbound lane, around the 

shadow vehicle, and back into the southbound lane before the point where he 

encountered the gravel, began to skid, and was unable to avoid the collision. 

{¶ 15} Carmen Daecher, plaintiff’s traffic engineering expert, testified that 

pursuant to Section 6G.01 of the OMUTCD (Plaintiff’s Exhibit 31), TTC patterns are 

arranged according to four criteria: the duration of the work involved, the location, the 

type of work, and the type of roadway. Daecher characterized the duration of the work 

as “short-term stationary,”2

 the location as “within the traveled roadway,” and the 

highway type as “having no significant sight distance.” With those considerations in 

mind for a berming operation, Daecher opined that a TA-10/6C-3 layout with traffic 

cones was required. In his view, those same characteristics, when applied to a mobile 

berming operation, would have required a TA-17 layout; however, he did not believe 

that the required shadow vehicle was present when the accident occurred. He testified 

that the OMUTCD sets forth the “minimal desirable standards” and that components of 

 2

Section 6G.02 of the OMUTCD defines short-term stationary work as “daytime work that occupies a location 

for more than 1 hour within a single daylight period.” A mobile operation is defined as “work that moves 

intermittently or continuously.”
the suggested TTC’s can be modified by adding safety components, but not by taking 

any components away. It was his opinion that ODOT did not have either a proper TA10 or TA-17 layout in place at the time. 

{¶ 16} In response to plaintiff’s evidence, defendant presented the testimony of 

Doug Dillon, a traffic engineer and Roadway Service Manager for ODOT’s District 11, 

where the accident occurred, and that of Dale Meyer, an accident reconstruction expert. 

{¶ 17} Dillon testified that there are 3,500 miles of roadway in District 11 and that 

spot berming is a routine operation that is performed each year on the 7,000 miles of 

road berm in the district. He related that it was he who had provided the 6C-3 diagram 

in response to plaintiff’s request for information. Dillon testified that he based his 

response upon information that he received from the county transportation manager and 

a review of the work logs for the date in question. He stated that he selected the TTC 

that he thought was appropriate, but that he was not at the site at the time that the 

accident occurred. Dillon insisted that the 6C-3 was the plan in use at the time, with the 

exception of the channelizing cones. He noted that, according to the OMUTCD, such 

cones are optional for a moving operation. Dillon was adamant that, based upon his 

engineering and ODOT work experience, spot berming is considered a moving 

operation. He explained that the OMUTCD by its own language sets forth “typical” 

layouts that experienced road crews are expected to modify for the particular 

circumstances in order to create the best possible safety conditions for both themselves 

and the public. He concluded that the TTC in use on the date of the accident complied 

with all OMUTCD standards. 

{¶ 18} Meyer testified regarding the cause of the accident and whether the TTC 

layout was a factor. It was his opinion that the TTC was appropriate, assuming that it 

included Fondriest’s truck as a shadow vehicle at the crest of the hill. Based upon his 

investigation, Meyer opined that the truck was located at a sufficient distance north of 

the hill crest for a motorcyclist to drive past it and then back into the southbound lane 

before encountering the loose gravel and beginning to skid. Meyer further testified that, 

in his view, the cause of the accident was a “clear case” of plaintiff’s failure to maintain 

an assured clear distance ahead. He concluded that if plaintiff had paid reasonable 

attention to the warning signs and the flagger’s instruction on the approach to the area, 
plaintiff would have been alert to the presence of a work zone and had sufficient time 

and distance to avoid the accident. 

{¶ 19} Upon review of the testimony and other evidence presented, the court 

finds as follows. 

{¶ 20} The weight of the evidence establishes that in order to be in compliance 

with the OMUTCD standards, the TTC in place at the work zone had to include either 

channelizing cones or a shadow vehicle. Although the manual does not state that the 

use of either is mandatory, based upon the duration of the work, its location, the nature 

of the operation, and the limited sight-distance that existed in the area, reasonable 

discretion and judgment dictate that one or the other be in place. Dillon acknowledged 

as much when he twice sent the 6C-3 specifications to plaintiff, as did Fondriest when 

he testified that he had parked his ODOT truck at the crest of the hill in lieu of using 

traffic cones. Because it is evident that there were no channelizing cones in place, the 

question becomes whether the shadow vehicle was present at the time of the accident. 

The court is convinced that it was not. Fondriest testified that he was at the bottom of 

the hill talking to other workers when the accident occurred. He related that he was in 

that location because the work in the area was complete, except for the sweeping, and 

that he was discussing moving the work zone to the next location. While the OSHP 

photographs show Fondriest’s truck at the crest of the hill, the trooper did not arrive at 

the scene until approximately 20 minutes after the accident occurred and it is 

reasonable to assume that the photographs were not taken until some time later. The 

court finds that Fondriest was a credible and candid witness; however, the court is 

persuaded that he simply failed to recall whether he walked or drove his truck down the 

hill to talk to the other workers. The court finds that moving the truck away from the 

work activity before it was complete constitutes a breach of the duty of care owed to 

plaintiff and was a proximate cause of the accident. 

{¶ 21} With respect to the issue whether the sweeper truck was backing up, and 

thereby reduced or eliminated plaintiff’s ability to react to and avoid the accident, the 

court finds that the evidence fails to establish that such was the case. Both Fondriest 

and Sherman Jones, who was operating the sweeper truck, testified quite credibly 

regarding the method for turning the truck in order to make a second or third pass over 
the debris remaining on the roadway. Fondriest and Jones recalled clearly that Jones 

was driving forward at the time of the accident. There was simply no persuasive 

evidence that the sweeper truck was backing up for any reason prior to the accident. 

Accordingly, the court concludes that the sweeper truck’s movement was not a 

proximate cause of the accident. 

{¶ 22} In short, the court finds that ODOT’s negligence in moving the shadow 

vehicle, combined with plaintiff’s own negligence to produce plaintiff’s injury.3

 As such, 

Ohio’s comparative fault statute, R.C. 2315.33,4 is applicable. 

{¶ 23} The common law of Ohio imposes a duty of reasonable care upon 

motorists that includes the responsibility to observe the environment in which one is 

driving. See, e.g., Hubner v. Sigall (1988), 47 Ohio App.3d 15, 17. The evidence in this 

case is clear that plaintiff did not observe any of the three warning signs on the 

approach to the work zone, or that the flagger used a paddle sign as opposed to a cloth 

flag or the hand signals that plaintiff recalled. Further, plaintiff could not even recall 

whether he was directed to proceed into the northbound lane; he testified that he 

thought that the flagger was there only to slow down traffic. The court does not doubt 

that plaintiff slowed his speed in response to the flagger’s direction, however, R.C. 

4511.21 provides: 

 3

 In reaching this determination, the court has not considered the testimony of Clantz Liggett, the flagger who 

was on duty in the southbound lane at the time of the accident. Liggett testified that shortly before the 

accident he had stopped a line of traffic, including a semi-tractor trailer and eight or nine cars, when a 

motorcyclist sped out from the line and drove past him before stopping and looking back for direction. 

Liggett stated that he had been cleared by the other flagger to release his line of traffic, so he motioned 

for the motorcyclist to proceed, then released the other vehicles. However, none of the witnesses who 

were present at the accident scene recalled seeing a line off traffic, particularly a semi-tractor trailer, 

travel through the area after the accident. Further, Liggett recalled that the motorcyclist who sped past 

him was wearing a helmet; plaintiff was not. The court concludes that the totality of the evidence 

establishes that plaintiff was not the motorcyclist that Liggett identified. 4

R.C. 2315.33 provides: 

 “The contributory fault of a person does not bar the person as plaintiff from recovering damages 

that have directly and proximately resulted from the tortious conduct of one or more other persons, if the 

contributory fault of the plaintiff was not greater than the combined tortious conduct of all other persons 

from whom the plaintiff seeks recovery * * *.” 
{¶ 24} “(A) No person shall operate a motor vehicle * * * at a speed greater or 

less than is reasonable or proper, having due regard to the traffic, surface, and width of 

the street or highway and any other conditions, and no person shall drive any motor 

vehicle * * * upon any street or highway at a greater speed than will permit the person to 

bring it to a stop within the assured clear distance ahead.” (Emphasis added.) 

{¶ 25} In State v. Dehnke (1974), 40 Ohio App.2d 194, the court explained that 

“[i]n considering the wording of the statute, we find that the single basic requirement is 

that the speed be reasonable under the circumstances existing. The statutory limits for 

various types of roads or highways furnishes a two pronged presumption affecting the 

presentation of evidence. A speed in excess of the statutory limit is a prima facie 

unreasonable speed; a speed at or below the statutory limit is a prima facie reasonable 

speed. But the ultimate criterion is that the speed be reasonable considering the 

conditions then existing.” Id. at 195-196. (Emphasis added.) 

{¶ 26} In this case, plaintiff testified that he had previously traveled SR 93 on 

numerous occasions and was familiar with its terrain. He acknowledged that the area 

was in “Amish country” and that it was important to be alert for buggies and bicycles. 

He also acknowledged that he observed a flagger in the roadway and that he was 

directed to slow down. The court finds that, given plaintiff’s knowledge and familiarity 

with the surroundings, his lack of attentiveness and his speed through the area was 

unreasonable for the conditions then existing. The court finds that the degree of fault 

attributable to plaintiff is 75 percent. 

{¶ 27} For the foregoing reasons, the court finds that although defendant was 

negligent in failing to maintain a safe and efficient TTC, any negligence on its part is 

outweighed by that of plaintiff. Judgment shall therefore be entered in favor of 

defendant. 

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 
JAMES W. NORMAN 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-04548 

Judge Clark B. Weaver Sr. 

JUDGMENT ENTRY

 This case was tried to the court on the issue of liability. The court has 

considered the evidence and, for the reasons set forth in the decision filed concurrently 

herewith, judgment is rendered in favor of defendant. Court costs are assessed against 

plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of 

entry upon the journal. 

 _____________________________________ 

 CLARK B. WEAVER SR. 

 Judge 

cc: 

 

Christopher P. Conomy 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

J. Thomas Henretta 

400 Key Building 

159 South Main Street 

Akron, Ohio 44308 

Mark C. Willis 

Todd L. Willis 

670 West Market Street 

Akron, Ohio 44303-1414 

LH/cmd/Filed June 9, 2011/To S.C. reporter June 22, 2011