[Cite as Riggs v. Ohio Dept. of Transp., Dist. 1, 2012-Ohio-3221.]

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

DOUGLAS RIGGS 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DISTRICT 1 

 Defendant 

Case No. 2011-12668-AD 

Clerk Mark H. Reed 

MEMORANDUM DECISION

{¶1} Plaintiff, Douglas Riggs, related he was traveling east on State Route 103 

“at roughly 45-50 mph with 20-30 mph winds coming from west-southwest direction” 

when his 2001 Honda Insight “went off the right side of the road.” Plaintiff explained 

that “my car was pulled down into the stone edging which is about 38 inches wide. In 

the stone edging there is placed a mile marker #3 which I struck” causing significant 

damage to the vehicle. Plaintiff pointed out the car sustained damage to the front rim, 

bumper, headlight bracket, door, and mirror. Plaintiff submitted photographs of State 

Route 103 at mile marker 3 which depict a straight paved roadway, bordered by a 

painted white edge line. Beyond the white line there is a narrow, paved berm and the 

shoulder of the roadway consists of approximately three feet of loose rock. A small 

square sign atop a short metal post has been placed in the grassy area beyond the rock 

shoulder. The trier of fact notes that the sign is entirely outside of the regularly traveled 

portion of the roadway. Plaintiff recalled his damage incident occurred at approximately 

1:50 p.m. on November 10, 2011. Plaintiff implied the damage to his automobile was 

proximately caused by negligence on the part of defendant, Ohio Department of 
Transportation (ODOT), in maintaining a roadway marker too close to the roadway 

adjacent to State Route 103. Plaintiff filed this complaint seeking to recover $2,500.00, 

the stated cost of replacement parts and related repair expenses. The filing fee was 

paid. 

{¶2} Defendant denied liability based on the contention that the mile marker 

plaintiff’s vehicle struck is clearly outside the portion of the roadway intended for travel 

and consequently, ODOT may not be held liable for damage caused by conditions 

located off the roadway. Defendant also asserted placement of the sign complies with 

the regulations contained in ODOT’s Traffic Engineering Manual. Defendant implied 

plaintiff failed to prove his property damage was proximately caused by any negligent 

act or omission attributable to ODOT. 

{¶3} Plaintiff did not file a response. 

{¶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. 

{¶6} 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. 

{¶7} Ordinarily in a claim involving roadway defects, plaintiff must prove either: 

1) defendant had actual or constructive notice of the defective 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. However, the particular standard of proof applies 

in situations where a motorist suffers damage from a defective condition located on the 

traveled portion of the roadway. Evidence in the instant claim establishes that the sign 

plaintiff’s car struck was located entirely off the roadway berm and shoulder. 

{¶8} This court has previously held that ODOT is not to be held liable for 

damages sustained by individuals who used the berm or shoulder of a highway for 

travel without adequate reasons. Colagrossi v. Department of Transportation (1983), 

82-06474-AD. Generally, a plaintiff is barred from recovery for property damage caused 

by a defect or any condition located off the traveled portion of the roadway. 

{¶9} The shoulder of a highway is designed to serve a purpose which may 

include travel under emergency circumstances. It is for the trier of fact to determine 

whether driving on the shoulder is a foreseeable and reasonable use of the shoulder of 

the highway. Dickerhoof v. City of Canton (1983), 6 Ohio St. 3d 128, 6 OBR 186, 451 

N.E. 2d 1193. If a plaintiff sustains damage because of a defect located off the marked, 

regularly traveled portion of a roadway, a necessity for leaving the roadway must be 

shown. Lawson v. Department of Transportation (1977), 75-0612-AD. Plaintiff’s 

inability to maintain control of his vehicle during windy conditions is not an adequate 

reason or necessity for straying from the regularly traveled portion of the roadway. 

Smith v. Ohio Department of Transportation (2000), 2000-05151-AD. 

{¶10} 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 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. 

{¶11} “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 his damage was proximately 

caused by any negligent act or omission on the part of ODOT. In fact, the sole cause of 

plaintiff’s damage was his own negligent driving. See Franz v. Ohio Dept. of 

Transportation, Ct. of Cl. No. 2003-09483-AD, 2003-Ohio-7135; Salcius v. Ohio Dept. of 

Transp., Ct. of Cl. No. 2009-06958-AD, 2009-Ohio-7166. 
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 

DOUGLAS RIGGS 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DISTRICT 1 

 Defendant 

Case No. 2011-12668-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: 

Douglas Riggs Jerry Wray, Director 

145 W. Woodmere Drive Department of Transportation 

Tiffin, Ohio 44883 1980 West Broad Street 

 Columbus, Ohio 43223 

011 

Filed 2/23/12 

sent to S.C. Reporter 7/17/12