[Cite as Riemer v. Ohio Dept. of Transp. D-12, 2009-Ohio-7186.]

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

FRANCES RIEMER 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION D-12 

 Defendant 

Case No. 2009-07041-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} On June 11, 2009, at approximately 6:00 p.m., plaintiff, Frances Riemer, 

was traveling east on Interstate 90 in Lake County through a construction zone when 

her 2008 Mercedes Benz C300W4 struck a raised sewer grate causing tire and wheel 

damage to the vehicle. The existing asphalt roadway pavement through the 

construction zone had been milled in preparation for repaving with new asphalt overlay 

and the sewer grate plaintiff’s car struck had been left higher than the roadway surface 

due to the milling process. Plaintiff pointed out the exposed sewer grate was raised at 

least six inches above the roadway surface after milling operations were completed. 

Plaintiff recalled there were no pavement markings delineating lanes on the milled 

roadway surface and her vehicle struck the exposed sewer grate while she was 

attempting to change lanes to exit from Interstate 90 onto State Route 91. Plaintiff 

further recalled the sewer grate “remained unmarked (and) exposed . . . for several 

weeks after the incident.” Plaintiff specifically located the damage-causing sewer grate 

at “189 mile marker, approx. 200 feet south of it in the eastbound roadway prior to 

actual exit (SR 91).” Plaintiff contended the damage to her car was proximately caused 
by negligence on the part of defendant, Department of Transportation (ODOT), in failing 

to notify motorists of the existence of the raised sewer grate by ensuring proper lane 

markings were in place and placing signage or traffic control to advise motorists of the 

condition created by the roadway milling. Plaintiff filed this complaint seeking to recover 

$514.25, the total cost of replacement parts she incurred resulting from the June 11, 

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, The Shelly Company (Shelly). Defendant explained the particular 

project “dealt with grading, planning and resurfacing with asphalt concrete on I-90 

between county mileposts 1.88 to 7.80 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. DOT 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 “of an exposed sewer grate on I-90 prior to plaintiff’s incident.” Defendant 

denied receiving any calls or complaints regarding a defective condition caused by an 

exposed sewer grate. Defendant argued plaintiff failed to produce evidence to establish 

her property damage was caused by conduct attributable to either ODOT or Shelly. 

{¶ 6} Records show Shelly performed milling operations on the eastbound lanes 

of Interstate 90 during the early morning hours of June 11, 2009 with Shelly 

subcontractor, Trafftech, Inc., applying temporary pavement markings on the roadway 

and channelization on that same day. Shelly representative, Russell Sherman, 

Assistant Safety Director, drafted a letter (copy submitted) in reference to plaintiff’s 

claim and noted the casting (sewer grate) plaintiff’s vehicle struck “was padded with 

temporary material and is in the marked gore area not in a traveled lane.” Sherman 

reported the casting was padded with cold patch material after the roadway surface was 

milled on June 11, 2009. Sherman explained the milling operation was performed 

“according to the Ohio Department of Transportation specifications” and his 

investigation “found that there was nothing out of the ordinary on the above reference 

project on the day the alleged damage occurred.” Sherman provided photographs of 

the roadway area taken on September 3, 2009 after repaving had been completed and 

the roadway surface had been lined with pavement markings. The photographs depict 
the casting (sewer grate) clearly showing it within an area of roadway not intended for 

travel. 

{¶ 7} Plaintiff filed a response insisting “there were no pavement markings, lane 

markings or any other area markings on the newly asphalted roadway” at the time of her 

June 11, 2009 property damage incident. Plaintiff submitted a handwritten statement 

from her husband, Dennis Kaufman, who recorded he drove on Interstate 90 through 

the construction zone on or about June 11, 2009 and did not observe any lane 

markings. Kaufman related the “sewer grate in question was totally exposed and raised 

up at least 6-8 inches from the road that had been removed.” Kaufman denied 

observing any “barrier or protection over the sewer grate.” 

{¶ 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 OBR64, 

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 on June 11, 2009. The evidence available also 

establishes plaintiff’s incident occurred during daylight hours on a portion of the 

roadway not intended for regular travel. Evidence is conflicting in regard to the issue of 

whether or not the alleged damage-causing casting (sewer grate) was padded with cold 

patch material. 

{¶ 9} 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. 

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

and it is such as should have been foreseen in 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} This court has previously held that the Department of Transportation is not 

to be held liable for damages sustained by individuals who suffered property damage 

from a defective condition located off the portion of roadway intended for travel. 

Colagrossi v. Department of Transportation (1983), 82-06474-AD. Generally, a plaintiff 

is barred from recovery for property damage caused by a defect or any condition 

located off the traveled portion of the roadway. 

{¶ 12} The gore area of a highway is designed to serve a purpose which may 

include travel under emergency circumstances. It is for the trier of fact to determine 

whether driving on the shoulder is a foreseeable and reasonable use of the gore area of 

the highway. Dickerhoof v. City of Canton (1983), 6 Ohio St. 3d 128, 6 OBR 186, 451 

N.E. 2d 1193. If a plaintiff sustains damage because of a defect located off the marked, 

regularly traveled portion of a roadway, a necessity for leaving the roadway must be 

shown. Lawson v. Department of Transportation (1977), 75-0612-AD. Plaintiff, in the 

present action, has failed to produce an adequate reason for driving on a roadway area 

not generally intended for travel despite the fact pavement markings may or may not 

have been present. Evidence available seems to point out the roadway area was 

maintained properly under ODOT specifications. Plaintiff failed to prove her 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-Ohio4190. The evidence tends to show the sole cause of plaintiff’s damage was her own 

driving maneuver. See Yokey v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-07425-AD, 

2005-Ohio-456; also Lenaghan v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-06071-AD, 
2008-Ohio-1206. 

 

 

 

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 

FRANCES RIEMER 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, D-12 

 Defendant 

Case No. 2009-07041-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: 

Frances Riemer Jolene M. Molitoris, Director 

38310 Ridge Road Department of Transportation 

Willoughby, Ohio 44094 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

10/28 

Filed 12/22/09 

Sent to S.C. reporter 4/7/10