[Cite as Combs v. Ohio Dept. of Transp., 2010-Ohio-3148.]

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

STEPHANIE COMBS 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANS. 

 Defendant 

Case No. 2009-08756-AD 

Clerk Miles C. Durfey 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Stephanie Combs, filed this action contending that her 2005 

Chevrolet Uplander truck was damaged on August 10, 2009 as a proximate cause of 

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

maintaining a construction area on Kemper Road in Hamilton County. Specifically, 

plaintiff related that the running boards on her truck were “crushed” and became 

detached from scraping on the curb area at the entrance/exit to her place of 

employment (Valley Asphalt) which abuts Kemper Road. Plaintiff explained that “[t]he 

curb at this location was too high and damaged (the) running boards on my vehicle 

when I was leaving for lunch.” Plaintiff submitted photographs depicting the roadway 

construction area on Kemper Road at the entrance to Valley Asphalt. Additional 

submitted photographs depict plaintiff’s vehicle stopped at the entrance/exit of Valley 

Asphalt at Kemper Road. The photographs show an area of Kemper Road where the 

roadway surface has been milled in preparation for repaving. The milled portion of 

Kemper Road abuts an unmilled area of roadway surface over two feet wide that runs 

the length of Kemper Road. Concrete curbing perhaps six inches wide separates and 
spans the unmilled portion of Kemper Road at the entrance/exit to Valley Asphalt. The 

curbed area is raised approximately one inch from the unmilled portion of Kemper Road 

and as much as two inches above the paved area at the entrance/exit to Valley Asphalt. 

The submitted photographs of the Chevrolet Uplander show the vehicle stopped at the 

driveway approach to Valley Asphalt from Kemper Road. The back end of plaintiff’s 

vehicle is positioned on Kemper Road, with the middle and front of the vehicle parked 

across the raised area at the Valley Asphalt driveway approach. The photographs show 

the left side running board of plaintiff’s Chevrolet Uplander contacting with the raised 

roadway surface abutting the Valley Asphalt driveway approach. The running board on 

the vehicle appears to be intact. 

{¶ 2} Plaintiff asserted that the driveway approach at Valley Asphalt was 

rendered unsafe for vehicle traffic as a result of the milling operation conducted on 

Kemper Road. Plaintiff claimed that the difference in roadway surface elevation 

between the milled roadway and the intact driveway approach caused the running 

boards on the Chevrolet Uplander to be “crushed” and “came unattached.” Plaintiff 

related that the running boards “have to be replaced because they were ripped off the 

brackets.” In her complaint, plaintiff contended that her vehicle was damaged as a 

result of ODOT negligence in failing to correct the dangerous condition created by 

milling the surface on Kemper Road and leaving the driveway approach from Kemper 

Road to Valley Asphalt intact. Consequently, plaintiff filed this action requesting 

damages in the amount of $953.16, the stated cost of replacing the running boards on 

her vehicle. Plaintiff submitted an invoice showing that she had running boards installed 

on her Chevrolet Uplander on March 11, 2008, at a cost of $953.16. The $25.00 filing 

fee was paid and plaintiff requested reimbursement of that cost along with the damage 

claim. 

{¶ 3} Defendant acknowledged that the area where plaintiff’s stated property 

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 that the particular construction project, “dealt with grading, 

draining, paving in part with concrete pavement and warranty asphalt pavement” as well 

as “[w]idening ramps at Kemper Road and Mostellar Road and installing a three sided 

culvert and existing culvert in Hamilton County.” Defendant advised that “[p]laintiff’s 
incident on Kemper Road places her near milepost 26.45, which is within the project 

limits.” Defendant asserted that Kokosing, by contractual agreement, was responsible 

for 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. 

{¶ 4} 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. 

{¶ 5} 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. 

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

knowledge of “the driveway on Kemper Rd. prior to plaintiff’s incident.” Defendant 

pointed out that ODOT “records (copies submitted) indicate that no calls or complaints 

were received at the Hamilton County Garage regarding the driveway in question prior 

to her (plaintiff’s) incident.” Defendant contended that plaintiff failed to produce 

evidence establishing her property damage was attributable to either conduct on the 

part of ODOT or Kokosing. 

{¶ 7} Both plaintiff and defendant submitted a letter from Kokosing Claims 

Specialist, Pamela J. LeBlanc, regarding work performed on the construction project, 

specifically the driveway approach area where plaintiff’s damage occurred. LeBlanc 

wrote that according to Project Engineer, Vince Martini, “the roadway and driveway 

approach were built according to Plan.” 

{¶ 8} Additionally, defendant submitted a copy of an e-mail from ODOT 

Resident Engineer, Dennis Stemler, referencing the work performed on Kemper Road 

at the Valley Asphalt driveway approach. Stemler noted the following observations: 

{¶ 9} “1. There is only 1 1⁄2 inch depression coming into the dropped curb. The 

change in slope from roadway to driveway is according to the plans. 

{¶ 10} “2. The project has been in discussion with Jim Crawford and JRJ 

because there were issues with their long drags having problems in this same area for 

at least two months. There are two other exits from JRJ/Valley office to get in and out. 

There were never any issues with car/vans getting in and out of the drive. 

{¶ 11} “3. The vehicle involved sits low to the ground and apparently has low 

profile tires. This is based upon the attached pictures. The distance from the running 

boards to the ground should be checked to see if it is legal distance as well.” 

{¶ 12} Plaintiff filed a response specifically denying defendant’s assertions that 

her 2005 Chevrolet Uplander has “low profile tires (and) ground effects.” Plaintiff 

explained that the running boards on her vehicle are positioned approximately six 
inches above “the ground.” Plaintiff maintained that the running boards installed on her 

vehicle were positioned at the same height as factory installed running boards. 

{¶ 13} 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 10, 2009. Additionally, 

plaintiff submitted photographic evidence depicting the uneven pavement condition and 

surface deviation between the edge of the driveway approach and the milled portion of 

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

milepost 26.45 on Kemper Road was initially milled prior to August 10, 2009. 

{¶ 14} “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. 

{¶ 15} 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 that a known hazardous condition existed on 

the roadway after ODOT specified operations were completed and that neither ODOT 

nor its agents timely corrected the condition. Plaintiff has proven her damage was 

proximately caused by negligent acts and omissions on the part of ODOT onsite 

personnel and ODOT’s agents. See Costello v. Ohio Dept. of Transp. (2009), 2009-

06052-AD. Therefore, defendant is liable to plaintiff in the amount of $953.16, the total 

cost of automotive repair, plus the $25.00 filing fee, which may be awarded as 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 

STEPHANIE COMBS 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANS. 

 Defendant 

Case No. 2009-08756-AD 

Clerk Miles C. Durfey 
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 $978.16, which includes the filing fee. Court costs are 

assessed against defendant. 

 

 MILES C. DURFEY 

 Clerk 

Entry cc: 

Stephanie Combs Jolene M. Molitoris, Director 

6650 Springdale Road Department of Transportation 

Cincinnati, Ohio 45247 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

2/25 

Filed 3/12/10 

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