[Cite as Harper v. Ohio Dept. of Transp., 2010-Ohio-6187.]

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

GLORIA HARPER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-01069-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} On November 10, 2009, at approximately 12:48 p.m., plaintiff, Gloria 

Harper, was traveling south on Interstate 75 “approaching exit 199 Wales Rd. in 

Perrysburg, Ohio,” when her 2006 Chrysler Town and Country van struck an orange 

traffic control barrel damaging the front bumper on the vehicle. Before impact, plaintiff 

recalled she saw the “orange barrel flying across the highway near the ground.” Plaintiff 

related “I didn’t see what caused the orange barrel to fly across the highway.” Plaintiff 

implied the damage to her van was proximately caused by negligence on the part of 

defendant, Department of Transportation (ODOT), in failing to maintain the roadway 

free of hazardous debris conditions. Plaintiff filed this complaint seeking to recover 

damages in the amount of $765.08, the estimated cost of vehicle repair. The filing fee 

was paid. 

{¶ 2} With her complaint plaintiff submitted a copy of a “Traffic Crash Report” 

compiled by an officer (David M. Buck) of the Northwood Police Department who 

investigated the November 10, 2009 property damage incident. According to 

information in the “Traffic Crash Report,” plaintiff indicated the orange barrel was 
propelled into her lane of travel when the barrel was hit by a semi truck “causing it to 

move across the road.” In the “Traffic Crash Report,” Officer Buck recorded that plaintiff 

maintained the barrel that her vehicle struck “may have been defective and wanted the 

company who owns the barrel to pay for” the damages to her van. Officer Buck noted 

plaintiff “then stated well maybe the truck didn’t hit the barrel and the company didn’t set 

them up right.” 

{¶ 3} Defendant explained that the roadway area where plaintiff’s incident 

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

ODOT contractor, Posen Construction, Inc. (Posen). Defendant advised the particular 

construction project “dealt with grading, draining, paving with asphalt concrete and by 

rehabilitating three structures on I-75 in Wood County.” According to defendant, the 

construction project “started at county milepost 32.68 and ended at county milepost 

33.58” on Interstate 75 and plaintiff’s damage incident occurred “near county milepost 

32.88,” which is located within the project limits. Defendant asserted that this particular 

construction project was under the control of Posen and consequently ODOT had no 

responsibility for any damage or mishap on the roadway within the construction project 

limits. Defendant argued that Posen, by contractual agreement, was responsible for 

maintaining the roadway within the construction zone. Therefore, ODOT contended that 

Posen 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 her 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. 

{¶ 4} 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. 

{¶ 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. 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. 

{¶ 6} Alternatively, defendant denied that neither ODOT nor Posen had any 

notice “of the construction barrel on I-75 prior to plaintiff’s” property damage event, 

Defendant advised that no calls or complaints were received from other motorists 

regarding a displaced barrel despite the fact that the particular section of Interstate 75 

“has an average daily traffic count of between 49,630 and 61,970 vehicles.” Defendant 

contended plaintiff failed to offer any evidence to establish her damage was attributable 

to any conduct on either the part of ODOT or Posen. Defendant further contended 

plaintiff failed to produce any evidence to prove the construction area was negligently 

maintained. 

{¶ 7} 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. 

{¶ 8} Ordinarily 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. 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. There is no evidence 

to show that any construction activity caused the barrel to be displaced. 

{¶ 9} Defendant has contended plaintiff did not offer evidence to prove her 

damage was caused by conduct attributable to either ODOT or Posen. Defendant 

asserted the barrel plaintiff’s van struck “was displaced by a third party and it was not a 

State (owned by ODOT) or Posen truck.” Defendant has denied liability based on the 

particular premise it had no duty to control the conduct of a third person except in cases 

where a special relationship exists between defendant and either plaintiff or the person 

whose conducts needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin Const. 

Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However, defendant may still bear 

liability if it can be established if some act or omission on the part of ODOT was the 

proximate cause of plaintiff’s injury. 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 

GLORIA HARPER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-01069-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: 

Gloria Harper Jolene M. Molitoris, Director 

14 Southard Avenue #202 Department of Transportation 
Toledo, Ohio 43604 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

6/18 

Filed 8/6/10 

Sent to S.C. reporter 12/10/10