[Cite as Goldstein v. Ohio Dept. of Transp., Dist. 4, 2010-Ohio-3935.]

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

JONATHAN D. GOLDSTEIN 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 4 

 Defendant 

Case No. 2009-09701-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Jonathan D. Goldstein, filed this action against defendant, 

Department of Transportation (ODOT), alleging his 2004 Honda Pilot was damaged as 

a proximate cause of negligence on the part of ODOT in “overseeing” a construction 

operation on a bridge spanning Interstate 680 in Youngstown. On August 13, 2009, at 

approximately 12:05 p.m., plaintiff traveled under the Ridge Avenue bridge that spans 

Interstate 680 while APBN, Inc., a subcontractor of ODOT contractor Shelly & Sands, 

Inc., was conducting paint removal operations on the bridge by sandblasting. Plaintiff 

advised that he was traveling north in the right lane of Interstate 680 and the left lane 

was closed for the construction operation on the bridge. Plaintiff related “[a]s I passed 

through the worksite my car was damaged by falling debris that was caused by a worker 

that was sandblasting paint from the bridge.” Plaintiff explained the APBN, Inc. 

employee was conducting the sandblasting operation from a standing position on top of 

an elevated box-truck that was parked on Interstate 680 beneath the bridge. Plaintiff 

further explained this sandblasting of the bridge was being conducted “without any 

enclosure” covering any portion of the bridge area. Plaintiff stated “[a]s I passed 
through the (APBN, Inc.) worker directed his nozzle toward the far right side of the 

passing lane causing debris to fall and damage my vehicle.” Plaintiff recalled he then 

exited the roadway at the nearest exit, reentered Interstate 680, drove south back to the 

sandblasting job site where he parked his vehicle, and began taking photographs 

(copies submitted) of the work set up. After photographing the operation, plaintiff 

proceeded to the Youngstown Police Department and filed an incident report. Plaintiff 

claimed the falling debris from the bridge sandblasting caused multiple areas of damage 

to the body of his 2004 Honda Pilot including “chips, scratches and dings in my hood, 

(left) fender, windshield and roof.” Plaintiff filed this complaint requesting total damages 

of $1,346.75 representing the cost of repairing his vehicle, car rental expense, and work 

loss, all resulting from the August 13, 2009 described incident. The filing fee was paid. 

In his complaint, plaintiff submitted a copy of the title (issue date July 31, 2009) to his 

2004 Honda. 

{¶ 2} The photographs plaintiff submitted depicting the sandblasting in progress 

show that the operation was being conducted in the open with no covering around the 

elevated box truck or bridge area where paint was being removed from the bridge 

structure. One photograph shows a cloud of dust like particles floating about the bridge 

structure and descending upon the open traveled portion of Interstate 680. Plaintiff also 

submitted photographs depicting damage to his vehicle. From a review these 

photographs, it appears the damage depicted is consistent with the assertion that the 

vehicle was pelted with fine particulate, although the damage shown appears to be 

extremely minor. However, one photograph shows damage in the form of a circular 

indentation which appears consistent with the vehicle body being hit with a chunk of 

concrete or rock and not being pelted with fine particulate matter. 

{¶ 3} Defendant acknowledged that the area where plaintiff’s alleged damage 

incident occurred was located within the limits of a working construction project under 

the control of ODOT contractor, Shelly & Sands, Inc. Defendant explained this 

particular project, “dealt with improving structures on I-680 within the City of 

Youngstown and these would relate to mileposts 4.03 to 12.18 in Mahoning County.” 

Defendant located plaintiff’s described incident according to the Youngstown Police 

Department Report he filed at the Woodland Overpass, which corresponds to “milepost 

5.94 which would be within the construction limits of this project.” Defendant asserted 
Shelly & Sands, Inc., by contractual agreement, was responsible for any damage 

occurrences or mishaps within the limits of the construction zone. Therefore, ODOT 

argued Shelly & Sands, Inc. should be 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, ODOT maintained an onsite inspection 

presence within the limits of the project area. 

{¶ 4} For plaintiff to prevail on a claim of negligence, he must prove, by a 

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

duty, and that the breach proximately caused his 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 he 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 neither ODOT nor Shelly & Sands, Inc. 

had any knowledge “of the sandblasting operation on I-680 prior to plaintiff’s incident.” 

ODOT records indicate no calls or complaints were received regarding the sandblasting 

incident prior to plaintiff’s incident. Defendant related ODOT records show “this portion 

of I-680 has an average daily traffic volume between 4,890 and 53,450, however, no 

other complaints were received prior to plaintiff’s alleged incident.” Defendant 

contended plaintiff failed to produce evidence establishing that his property damage 

was attributable to any conduct on either the part of ODOT or Shelly & Sands, Inc. 

Defendant asserted plaintiff did not offer any evidence to prove ODOT negligently 

maintained the roadway bridge. Defendant argued that any damage to plaintiff’s vehicle 

could not have been caused by APBN, Inc. conducting sandblasting operations. 

{¶ 7} Defendant submitted a letter from APBN, Inc. Vice Present, Vasilis 

Katsourakis, regarding the damage observed on plaintiff’s vehicle. Vasilis Katsourakis 

reported APBN, Inc. representatives met with plaintiff on September 14, 2009 and 

examined the damage on his car. Vasilis Katsourakis expressed the opinion that the 

damage observed on the car was very minor and was not caused by APBN, Inc. 

conducting sandblasting. Vasilis Katsourakis noted the following: 

{¶ 8} “The majority of the damage reported by Mr. Goldstein and observed by 

APBN Inc.’s representative, Anthony Katsourakis, were three distinct pot marks located 

in the middle of Mr. Goldstein’s vehicle. To suggest that 20-40 black beauty sand (sand 

finer than sugar) created the pot marks on Goldstein’s auto would be absurd. The pot 

marks on Goldstein’s vehicle were caused by something denser than the 20-40 black 

beauty sand APBN INC. was using on this project.” 

{¶ 9} Additionally, Vasilis Katsourakis reported that plaintiff “pointed out four 

areas of windshield damage of which three were bug marks that were removed by Mr. 

Katsourakis.” 

{¶ 10} Defendant also supplied a statement from ODOT Project Engineer, Tom 

Kopnicky, regarding his opinion of the alleged damage incident. Kopnicky recorded the 
following observations: 

{¶ 11} “After looking at the pictures, I don’t think that the damage was caused by 

APBN. The dents in the hood, in no way could have been caused by our operation. It 

is not physically possible. We are talking about paint being removed from the concrete. 

The waste created by this operation is a very fine, light debris that is swept up with 

brooms.” 

{¶ 12} Plaintiff filed a response insisting his 2004 Honda Pilot was damaged as a 

result of APBN, Inc. conducting sandblasting operations on the bridge spanning 

Interstate 680. Plaintiff advised APBN, Inc. failed to follow ODOT specifications when 

engaging in sandblasting. Plaintiff contended his vehicle was damaged as a proximate 

cause of the failure of APBN, Inc. to follow set ODOT specifications when performing 

the sandblasting. Specifically, plaintiff asserted “APBN’s negligence caused debris to 

fall and damage my vehicle, as there was no enclosure to catch falling sandblast 

cuttings and debris.” Plaintiff’s photographic evidence clearly shows no enclosure was 

in position around the APBN, Inc. box truck and bridge during the sandblasting 

operation. Plaintiff submitted a copy of ODOT specification 514.13(D)1

 titled 

“Containment/Waste Disposal,” which requires ODOT contractors to erect enclosures 

around bridges when performing sandblasting operations. 

 1

 ODOT “Construction and Material Specifications” manual section 514.13(D) provides in relevant 

part: 

 “D. Containment/Waste Disposal (QCP #4). Waste material generated by abrasive blasting 

operations in the field is a solid waste and may be a hazardous waste. Contain, collect, store, evaluate, 

and properly dispose of the waste material. Comply with all Federal, State, and local environmental 

protection laws, regulations, and ordinances including, but not limited to, air quality, waste containment, 

and waste removal. The Contractor is advised that various governmental bodies are involved with solid 

waste and hazardous waste disposal and the Contractor is responsible for complying with laws enforced 

by the various governmental bodies. 

 “To prevent contamination of the pavement or soil, park all equipment on ground covers free of 

cuts, tears, and holes. 

 “Clean equipment of spent abrasives or debris before bringing equipment to the project, moving 

equipment from one bridge site to another, and removing equipment from the project. Store debris 

cleaned from equipment with the debris from the structure that generated the debris. 

 “Erect an enclosure to completely surround (around, under and over the top on truss type 

bridges) the blasting operations. The Contractor may use the ground as the bottom of the enclosure if the 

ground is completely covered with plastic or tarps. 

 “Construct the enclosure of flexible materials such as tarpaulins (specifically designed for blasting 

containments), or construct the enclosure of rigid materials such as plywood. Maintain all materials free 

of tears, cuts, and holes. Overlap all seams a minimum of 6 inches (150 mm) and fasten the seams 

together at 12-inch (300 mm) centers or in a manner that ensures a seal that does not allow openings 

between the edges of the containment material. Extend the vertical sides of the enclosure completely up 

to the bottom of the deck on a steel beam bridge and use bulkheads between beams to enclose the 

blasting area.” 
{¶ 13} Plaintiff also disputed the description of the inspection of his vehicle by 

Anthony Katsourakis that was provided by Vasilis Katsourakis. Plaintiff explained 

Anthony Katsourakis looked at his blue Honda Pilot for less than ten seconds and then 

refused any responsibility for any damage to the vehicle. Plaintiff also denied Anthony 

Katsourakis ever removed any bug marks from the windshield of the Honda Pilot. 

Plaintiff claimed Anthony Katsourakis did not examine the Honda Pilot long enough to 

remove anything from the windshield. Plaintiff maintained he cleaned the windshield of 

the Honda Pilot before meeting with Anthony Katsourakis and recalled Katsourakis at 

no time during the meeting touched the Honda Pilot. 

{¶ 14} Plaintiff resubmitted photographs he took of the APBN, Inc. sandblasting 

worksite minutes after his described damage event occurred. Plaintiff pointed out the 

photographs depict APBN, Inc. personnel conducting sandblasting on the bridge area 

“over the open lane of traffic” on Interstate 680 North without any mandated form of 

enclosure over the work site. Plaintiff also pointed out a photograph he took depicts 

“clouds of debris falling on the open lane of traffic.” Plaintiff resubmitted a photograph 

he took depicting the windshield of his 2004 Honda Pilot. Plaintiff advised this 

photograph “clearly shows some of the dozens of small chips and gouges” claimed to 

have been caused by debris falling from the sandblasting operation. From a review of 

this photograph, the trier of fact is unable to discern what manner of windshield damage 

is depicted. Additionally, plaintiff resubmitted a photograph depicting body damage to 

his vehicle he described as “one of the dings that were created by the falling debris.” 

From a review of this photograph, the trier of fact finds the damage depicted appears as 

a circular indentation more likely than not caused by a hard pebble sized object 

propelled at a high rate of velocity. The damage depicted is not consistent with damage 

caused by falling minute sandblasting particulate descending at a slow rate of speed. 

Plaintiff provided a hand drawn sketch of his vehicle pointing out the damaged areas. 

The damages shown on the sketch appear to be confined to the hood, front fenders, 

front of the roof, and windshield of the vehicle. Plaintiff argued “[t]he facts and photos 

clearly demonstrate that the damage to my vehicle was caused by an overhead shower 

of some type of abrasive debris.” Plaintiff reasserted he is entitled to recover all 

damages claimed. 

{¶ 15} 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 his vehicle was directly caused by 

sandblasting activity of ODOT’s contractor on August 13, 2009. 

{¶ 16} 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. 

{¶ 17} “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 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. In the instant claim, the trier of fact finds 

plaintiff has failed to offer sufficient proof to establish that the damage to his vehicle 

was caused by ODOT’s contractor conducting sandblasting operations. Despite the fact 

APBN, Inc. totally disregarded ODOT specifications when engaged in sandblasting, the 

trier of fact is not convinced uncontained sandblasting debris caused the damage 
plaintiff claimed. Plaintiff has failed to prove that his 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; Vanderson v. 

Ohio Dept. of Transp., Ct. of Cl. No. 2005-09961-AD, 2006-Ohio-7163; Shiffler v. Ohio 

Dept. of Transp., Ct. of Cl. No. 2007-07183-AD, 2008-Ohio-1600. 

 

 

 

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 

JONATHAN D. GOLDSTEIN 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 4 

 Defendant 

Case No. 2009-09701-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: 

Jonathan D. Goldstein Jolene M. Molitoris, Director 

1931 State Route 551 Department of Transportation 

Enon Valley, Pennsylvania 16120 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

4/8 

Filed 4/21/10 

Sent to S.C. reporter 8/20/10