[Cite as Britton v. Ohio Dept. of Transp., 2015-Ohio-4852.]

IN THE COURT OF CLAIMS OF OHIO

KYLE BRITTON 

Plaintiff 

v. 

OHIO DEPARTMENT OF TRANSPORTATION 

Defendant 

Case No. 2014-00909-AD 

Clerk Mark H. Reed 

MEMORANDUM DECISION 

{¶1} Plaintiff Kyle Britton filed this claim on November 17, 2014 to recover 

damages which occurred to his 2007 Chevrolet Cobalt which was damaged as a result 

of an accident that occurred on October 6, 2014. The Plaintiff, in his complaint, alleges 

that as he was driving on Alkaline Springs approaching Dixie Drive in Montgomery 

County, he encountered a flagman in the employ of Barrett Paving Company. Alkaline 

Springs is a public road maintained by the Ohio Department of Transportation. This 

flagman then allegedly aggressively waived Mr. Britton to turn right at such an angle 

that the motorist was forced to strike a guardrail to avoid approaching traffic. Plaintiff’s 

vehicle sustained damages to his right passenger door and rear quarter panel with 

repair costs in the amount of $2238.52. Plaintiff maintains an insurance deductible of 

$500.00. 

{¶2} In the investigation report filed February 20, 2015, the defendant, Ohio 

Department of Transportation (ODOT), indicated that the area where plaintiff had his 

accident was a construction zone. The department had contracted with Barrett Paving 

Company to do certain construction work on this section of Alkaline Springs near Dixie 

Drive in Vandalia, Ohio. A copy of that contract was filed with the court as Defendant’s 

Exhibit “B.” 
 

{¶3} In construction cases like this one, the court may only pass judgment on 

whether the plaintiff has shown that ODOT breached its duty to the public in managing 

the contractor in a reasonable manner and ensuring the safety of the public within the 

construction zone. 

{¶4} As the court considers whether ODOT breached its duty to the public, the 

court must take into account that the area where the accident occurred was a 

construction zone. Ohio law is clear that ODOT cannot guarantee the same level of 

safety during a highway construction project as it can under normal traffic conditions. 

Feichtner v. Ohio Dept. of Transp.(1995), 114 Ohio App. 3d346, 354; Roadway 

Express, Inc. The test is whether, under the totality of the circumstances, "ODOT acted 

sufficiently to render the highway reasonably safe for the traveling public during the 

construction project." Basilone v. Ohio Dept. of Transp. (Feb. 13, 2001), Franklin App. 

No. 00AP-811, citing Feichtner, and Lumbermens Mut. Cas. Co. v. Ohio Dept. of 

Transp. (1988), 49 Ohio App.3d. 129. 

{¶5} In this case, there is nothing in the record that would allow the court to find 

that the department did not act appropriately to keep the construction area reasonably 

safe. There is no evidence that ODOT knew or should have known about negligent 

flagging going on in this construction area. The plaintiff did not offer any evidence to 

counter what was in ODOT’s investigation report regarding this element. This is not to 

say that the alleged action of the flagman was or was not unreasonable. Barrett Paving 

is an independent contractor and that entity would be responsible for any negligent 

actions of its employees. However, Barrett Paving is not the defendant here; ODOT is 

and thus, the court need not decide the issue of any alleged acts of negligence on the 

part of Barrett Paving. 

{¶6} Since the plaintiff is unable to prove that ODOT was negligent in the 
Case No. 2012-06637 - 3 - ENTRY 

management of the contractor during this project, the claim must fail. 

IN THE COURT OF CLAIMS OF OHIO

KYLE BRITTON 

Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2014-00909-AD 

Clerk Mark H. Reed 

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. 

________________________________ 

MARK H. REED 
 

Clerk 

Entry cc: 

Kyle Britton Jerry Wray, Director 

209 Ranchview Drive Ohio Department of Transportation 

Vandalia, Ohio 45377 1980 West Broad Street 

 Mail Stop 1500 

 Columbus, Ohio 43223 

 

Filed 4/13/15 

Sent to S.C. Reporter 11/24/15