[Cite as Parker v. Ohio Dept. of Transp., 2010-Ohio-1725.]

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

CHERYL PARKER 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2009-08381-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Cheryl Parker, filed this action against defendant, Department of 

Transportation (ODOT), contending her 2005 Toyota Rav 4 was damaged as a 

proximate cause of negligence on the part of ODOT in failing to properly mark a 

concrete divider on US Route 20 to advise motorists of its presence. Plaintiff recalled 

her vehicle was damaged at approximately 7:30 p.m. on October 7, 2009 as a result of 

striking the concrete divider located on US Route 20 approximately 100 feet west on 

Fern Drive in Painesville Township in Lake County. Plaintiff related the concrete divider 

“is in the center of the road and is divided by railroad tracks” that span both the east and 

west roadway lanes of US Route 20. Plaintiff further related “[t]he ends of the (divider 

are) painted (yellow) but the ends that are (adjacent) to the tracks are not marked and 

that is where (I) drove into the (divider).” Plaintiff contended she drove over the 

unpainted portion of the concrete divider due to the fact it was unmarked and she 

apparently could not discern the divider during the early evening of October 7, 2009. 

Plaintiff expressed the opinion “that if these (dividers) were painted completely around 

(and/or) marked with reflective poles or guard rails they would be very visible and 
possibly prevent the next person to not do what I did.” One tire on the 2005 Toyota Rav 

4 was damaged when it struck the concrete divider while plaintiff drove from west to 

east on US Route 20. In her complaint, plaintiff requested damages in the amount of 

$265.22, representing the cost of a replacement tire, plus related repair expenses. The 

filing fee was paid. 

{¶ 2} Plaintiff submitted photographs depicting the particular section of the 

concrete divider on US Route 20 her vehicle struck. The photographs were taken from 

various distances and at various times. The photographs show an angled slab of 

unpainted concrete perhaps eight inches in height positioned in the center of the 

roadway with the angled section facing the railroad tracks. An orange center line 

delineates the traveled portion of the roadway from the concrete divider. The 

photographs were taken from a vehicle showing the driver’s perspective of the roadway, 

railroad tracks, and concrete divider. The trier of fact finds after reviewing the 

photographs submitted that the concrete divider and painted center line road 

demarcation are clearly visible. 

{¶ 3} Defendant denied liability in this matter arguing plaintiff did not produce 

any evidence to prove her property damage was caused by any negligent act or 

omission on the part of ODOT. Defendant suggested the sole cause of plaintiff’s 

damage was her own negligent driving in crossing a marked double yellow line on the 

roadway before striking the concrete divider located on the roadway median section not 

intended for travel. Defendant explained the decision was made to install the concrete 

divider to prevent motorists “from stopping on the railroad tracks to turn into businesses 

on US 20.” Defendant observed ODOT records indicate “[t]his section of roadway has 

an average daily traffic count between 11,120 and 15,890 vehicles.” Essentially, 

defendant maintained the concrete divider was placed as a safety measure to keep 

traffic from stopping on the railroad tracks spanning US Route 20 to enter businesses 

located adjacent to the roadway. Defendant contended plaintiff failed to prove the 

installation and maintenance of the concrete divider constituted actionable negligence 

on the part of ODOT. 

{¶ 4} Defendant submitted photographs depicting the roadway, concrete divider, 

railroad tracks and adjacent area. The photographs show the concrete divider is clearly 

visible, is placed on the roadway median beyond the clearly marked orange painted 
roadway demarcation, and therefore not part of the roadway intended for travel. 

{¶ 5} Plaintiff filed a response acknowledging she drove across the yellow line 

on US Route 20 “maybe a foot (and) hit the side end knowing the turn lane was at the 

end of the islands (concrete dividers).” Plaintiff again contended her property damage 

was proximately caused by negligence on the part of defendant in not providing 

additional markings on the concrete dividers to notify motorists of the roadway condition 

maintained by ODOT. 

{¶ 6} 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. 

{¶ 7} 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. 

{¶ 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 any injury is the natural and probable consequence of a negligent act 

and it is such as should have been foreseen in the 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. Evidence available tends to point out the roadway 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; 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. In fact, the sole 

cause of plaintiff’s damage was her own negligent driving. See Wieleba-Lehotzky v. 

Ohio Dept. of Transp., Dist. 7, Ct. of Cl. No. 2004-03918-AD, 2004-Ohio-4129. Plaintiff 

has not proven defendant maintained a hidden roadway defect. See Sweney v. Ohio 

Dept. of Transp., Dist. 8, Ct. of Cl. No. 2009-03649-AD, 2009-Ohio-6294. 

 

 

 

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 

CHERYL PARKER 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2009-08381-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: 

Cheryl Parker Jolene M. Molitoris, Director 

108 S. Doan Avenue Department of Transportation 

Painesville, Ohio 44077 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

12/7 

Filed 12/23/09 

Sent to S.C. reporter 4/16/10