[Cite as McAuliffe v. Ohio Dept. of Transp., 2010-Ohio-6663.]

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

PATRICK R. MCAULIFFE 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-06141-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Patrick R. McAuliffe, filed this action against defendant, 

Department of Transportation (ODOT), contending his 2002 Mazda Protégé 5 was 

damaged as a proximate cause of negligence on the part of ODOT in maintaining a 

hazardous condition in a roadway construction area on Interstate 75 in Warren County. 

In his complaint, plaintiff noted he was traveling on Interstate 75 near State Route 63 

when “[d]ebris from the construction hit my car puncturing the gas tank and damaging 

the exhaust.” Plaintiff recalled the stated property damage incident occurred on April 9, 

2010 at approximately 4:00 p.m. Plaintiff requested damages in the amount of 

$1,052.95, the total cost of replacement parts and repair expense. The filing fee was 

paid. 

{¶ 2} Defendant acknowledged the roadway area where plaintiff’s incident 

occurred was within the limits of a working construction project under the control of 

ODOT contractor, John R. Jurgensen Company (Jurgensen). Defendant explained the 

particular construction project “dealt with widening I-75 between Cincinnati-Dayton 

Road and SR 122 in Butler and Warren Counties.” According to defendant, the 
construction project limits “corresponds (to) state mileposts 21.0 to 32.0” on Interstate 

75 and plaintiff’s damage incident occurred at milepost 29.2, a location within the 

construction area limits. Defendant asserted that this particular construction project was 

under the control of Jurgensen and consequently ODOT had no responsibility for any 

damage or mishap on the roadway within the construction project limits. Defendant 

argued that Jurgensen, by contractual agreement, was responsible for maintaining the 

roadway within the construction zone. Therefore, ODOT contended that Jurgensen is 

the proper party defendant in this action. Defendant implied that 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. Furthermore, defendant contended that plaintiff failed to introduce sufficient 

evidence to prove his damage was proximately caused by roadway conditions created 

by ODOT or its contractors. All construction work was to be performed in accordance 

with ODOT requirements and specifications and subject to ODOT approval. Also 

evidence has been submitted to establish that ODOT personnel were present on site 

conducting inspection activities. 

{¶ 3} 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. 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. 

{¶ 4} Defendant had 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 

contentions 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 the particular construction work. See Roadway 

Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119. 

{¶ 5} Alternatively, defendant denied that neither ODOT nor Jurgensen “had 

any notice of debris lying around in I-75 prior to plaintiff’s property incident.” Defendant 

pointed out that ODOT records “indicate that no complaints were received at the Warren 

County Garage for I-75 regarding debris prior to Plaintiff McAuliffe’s incident.” 

Defendant advised, “[i]t should be noted that this portion of I-75 has an average daily 

traffic volume between 73,320 and 93,130, however, no other complaints were received 

(regarding any debris condition) prior to plaintiff’s alleged incident.” Defendant 

contended plaintiff failed to offer any evidence of negligent roadway maintenance on the 

part of ODOT and failed to produce evidence to establish his property damage was 

attributable to conduct on either the part of ODOT or Jurgensen. 

{¶ 6} Defendant submitted a letter from Jurgensen Project Manager, Kate 

Holden, who recorded Jurgensen personnel “were working on the southbound outside 

shoulder of I-75” on April 9, 2010, the stated date of plaintiff’s property damage 

occurrence. Holden advised this Jurgensen crew was “working more than three miles 

north of State Route 63.” According to Holden, no work was conducted on the Interstate 

75 construction project on April 8, 2010 “due to heavy rains.” Holden provided copies of 

her “journal notes” for the period from April 6, 2010 through April 13, 2010. There is no 

mention of any debris condition in the submitted “journal notes.” 

{¶ 7} 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 

incident. 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 attributable to the 

failure of Jurgensen to remove debris from the roadway caused by construction activity. 

Plaintiff has not submitted any evidence to establish the roadway surface was milled 

prior to April 9, 2010 or that any milling debris was left on the roadway. 

{¶ 8} Defendant may bear liability if it can be established if some act or 

omission on the part of ODOT or its agents was the proximate cause of plaintiff’s injury. 

This court, as the 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. 

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

and it is such as should have ben foreseen in the light of all the attending 

circumstances, the inury is then the proximate result of the negligence. It is not 

necessary that the defendant should have anticipated the 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. Evidence 

available tends to point out the roadway was maintained properly under ODOT 

specifications. Plaintiff failed to prove 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. 

{¶ 10} 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 

under both normal traffic 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; Rhodus, 67 Ohio 

App. 3d 723, 588 N.E. 2d 864. In the instant claim, plaintiff has failed to introduce 

sufficient evidence to prove that defendant or its agents maintained a known hazardous 

roadway condition. See Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-

AD, 2008-Ohio-4190. Evidence has shown that the repavement project complied with 

ODOT specifications. Plaintiff has not provided evidence to prove that the roadway 

area was particularly defective or hazardous to motorists. Reed v. Ohio Dept. of 

Transp., Dist. 4, Ct. of Cl. No. 2004-08359-AD, 2005-Ohio-615. Plaintiff has failed to 

provide sufficient evidence to prove that defendant was negligent in failing to redesign 

or reconstruct the roadway repavement procedure considering plaintiff’s incident 

appears to be the sole incident at this area. See Koon v. Hoskins (Nov. 2, 1993), 

Franklin App. No. 93AP-642; also, Cherok v. Dept. of Transp., Dist. 4, Ct. of Cl. No. 

2006-01050-AD, 2006-Ohio-7168. 

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 

PATRICK R. MCAULIFFE 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 
Case No. 2010-06141-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: 

Patrick R. McAuliffe Jolene M. Molitoris, Director 

821 Wittlesbach Drive Department of Transportation 

Apt. D 1980 West Broad Street 

Kettering, Ohio 45429 Columbus, Ohio 43223 

RDK/laa 

9/16 

Filed 11/10/10 

Sent to S.C. reporter 2/11/11