[Cite as Manross v. Ohio Dept. of Transp., 2010-Ohio-2028.]

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

JACKIE MANROSS 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2009-07911-AD 

Clerk Miles C. Durfey 

MEMORANDUM DECISION

{¶ 1} On August 21, 2009, at approximately 8:10 a.m., plaintiff, Jackie Manross, 

was traveling south on Interstate 271, “before the Wilson Mills exit” in Cuyahoga 

County, when her 2006 Honda Civic was struck by “a large rock” that “flew up” from the 

roadway surface. Plaintiff pointed out that she was traveling through a construction 

zone on Interstate 271 in an area where the roadway surface had been milled in 

preparation for repaving. Plaintiff implied that the “large rock” that struck and damaged 

the left front door of her car had been left on the roadway after the surface milling was 

completed. Plaintiff asserted that the damage to her car was proximately caused by 

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

maintain the roadway free of defects, such as the rock debris. Plaintiff filed this 

complaint seeking to recover $533.80, the total cost of automotive repair needed 

resulting from the August 21, 2009 damage occurrence. The filing fee was paid. 

{¶ 2} Defendant acknowledged that the area where the described incident 

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

ODOT contractor, The Shelly Company (Shelly). Defendant explained that the “project 
dealt with resurfacing with asphalt concrete, pavement repair, guardrail installation, 

signing and other related work from Mayfield Heights on I-271 in Cuyahoga County to I90 in Lake County.” Defendant located the damage occurrence from plaintiff’s 

description at state milepost 36.30 on Interstate 271; an area within the limits of the 

construction zone under the control of Shelly. 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 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. All work by the contractor was to be performed in accordance with ODOT 

mandated specifications and requirements and subject to ODOT approval. 

Furthermore, ODOT personnel maintained an onsite inspection presence in the work 

zone. 

{¶ 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 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. 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. 

{¶ 5} Alternatively, defendant argued that neither ODOT nor Shelly had any 

knowledge “of rocks flying around on I-271 prior to plaintiff’s incident.” Defendant also 

argued that plaintiff has failed to offer any evidence to prove her property damage was 

caused by any conduct attributable to either ODOT or Shelly. Defendant submitted 

records showing that Shelly performed roadway milling operations on Interstate 271 

South from 7:00 p.m. on August 20, 2009 to 7:00 a.m. on August 21, 2009. The records 

indicate that the milling operation ended at the Cuyahoga County line approximately two 

miles north of the location that plaintiff stated her damage event occurred. Defendant 

recorded that all roadway on Interstate 271 South in Cuyahoga County had already 

been milled and repaved with the first layer of asphalt prior to the date of plaintiff’s 

incident. 

{¶ 6} 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 21, 2009. Other than 

plaintiff’s assertion there is no evidence to suggest that the debris that damaged 
plaintiff’s car emanated from any roadway milling operation or other construction 

activity. 

{¶ 7} Generally, in order to recover in any suit involving injury proximately 

caused by roadway conditions including debris, plaintiff must prove that either: 1) 

defendant had actual or constructive notice of the debris condition and failed to respond 

in a reasonable time or responded in a negligent manner, or 2) that defendant, in a 

general sense, maintains its highways negligently. Denis v. Department of 

Transportation (1976), 75-0287-AD. Plaintiff has not produced any evidence to indicate 

the length of time that the debris was present on the roadway prior to the incident 

forming the basis of this claim. No evidence has been submitted to show that defendant 

had actual notice of the debris. Additionally, the trier of fact is precluded from making 

an inference of defendant’s constructive notice, unless evidence is presented in respect 

to the time that the debris appeared on the roadway. Spires v. Ohio Highway 

Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no indication 

defendant had constructive notice of the debris. Plaintiff has not produced any 

evidence to infer that defendant, in a general sense, maintains its highways negligently 

or that defendant’s acts caused the defective condition. Herlihy v. Ohio Department of 

Transportation (1999), 99-07011-AD. Plaintiff has failed to prove that 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-Ohio7162; Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-AD, 2008-Ohio4190. 

 

 

 

 

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 
JACKIE MANROSS 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2009-07911-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 defendant. Court costs are assessed against plaintiff. 

 

 ________________________________ 

 MILES C. DURFEY 

 Clerk 

Entry cc: 

Jackie Manross Jolene M. Molitoris, Director 

9510 Greenvalley Drive Department of Transportation 

Mentor, Ohio 44060 1980 West Broad Street 

 Columbus, Ohio 4322 

RDK/laa 

1/13 

Filed 1/27/10 

Sent to S.C. reporter 5/7/10