[Cite as Van Dyke v. Ohio Dept. of Transp., 2011-Ohio-1118.]

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

KURT J. VAN DYKE 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-09248-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Kurt J. Van Dyke, filed this action against defendant, Department 

of Transportation (ODOT), contending his 2005 Jaguar S-Type was damaged as a 

proximate cause of negligence on the part of ODOT personnel in conducting roadway 

maintenance activity on State Route 605 in Franklin County on May 19, 2010. In his 

complaint, plaintiff provided his own narrative description of the May 19, 2010 damage 

event which he recalled occurred on State Route 65 South near “the intersection of 

Route-605 and Bevelheimer” (Bevelhymer Road). Plaintiff pointed out as he 

approached the intersection of State Route 605 and Bevelhymer Road he noticed traffic 

ahead slowing and he decelerated his car to “approx 10 mph.” According to plaintiff, as 

he passed the intersection he drove into the northbound lane of State Route 605 and 

“[i]t was at this time I noted a road crew (ODOT personnel) dropping cones on foot with 

a pickup truck keeping pace and holding the cones.” Plaintiff recorded that when he 

ascertained the situation involving defendant’s road maintenance crew he decided to 

pass the whole operation by driving in the northbound lane of State Route 605. Plaintiff 

recalled, “I accelerated to approximately 35 MPH to pass the two cars and the road 

crew that was on foot (and) [a]s I passed the road crew the worker that was setting the 
cones down looked directly at me and threw one into the northbound lane which I was 

passing in.” Plaintiff maintained that he decided to drive over the cone that was 

allegedly thrown into the northbound lane of State Route 605. Plaintiff advised he made 

this decision in the interest of safety for himself, the ODOT crew, and other motorists on 

the roadway at the time. Plaintiff noted that when he drove over the cone it became 

lodged in the undercarriage of his car although he did observe “plastic body parts in the 

distance” as he looked in his rearview mirror upon passing ODOT’s moving work 

operation. Plaintiff did not stop his vehicle after passing the ODOT work crew but 

continued traveling south on State Route 605. Plaintiff related the cone dislodged from 

the undercarriage of his car when the car “hit the expansion joint of the bridge on Route605 that passes over Route-161” estimated to be approximately one mile from the site 

where the Jaguar first struck the cone. Plaintiff stated “I later retrieved the cone for 

evidence and to clean the roadway of its hazard.” Attached to the complaint were 

multiple photographs of the traffic control cone. These photographs depict a cone that 

appears almost entirely intact bearing some gouge marks. Plaintiff contended all 

damage to his automobile (photographs of damage submitted) was caused by the 

described act of an ODOT employee. In his complaint, plaintiff requested damage 

recovery in the amount of $2,500.00, the statutory maximum amount allowed under 

R.C. 2743.10. The filing fee was paid. 

{¶ 2} Defendant acknowledged ODOT personnel from the Westerville Garage 

were positioning traffic control on State Route 605 in Franklin County on the morning of 

May 19, 2010. Defendant explained the traffic control was in place “for the boring crew 

out of (ODOT) Central Office to get core samples of the dirt around the bridges” on 

State Route 605 at milepost 3.11. Defendant asserted the traffic control operation was 

conducted in accordance with standard procedure, which included “posting signs of the 

work ahead, setting out cones every 500' and using a flagger.” Conversely, plaintiff 

contended he observed no advisory signs posted or any flagger directing traffic 

preceding his described damage occurrence. Defendant specifically denied any ODOT 

personnel breached any duty of care owed to plaintiff which resulted in the property 

damage claimed. Defendant insisted all traffic control was in place on State Route 605 

at the time of plaintiff’s damage occurrence. Defendant suggested plaintiff’s own 

negligent driving maneuver was the proximate cause of the damage claimed. 
{¶ 3} Defendant submitted two e-mails from ODOT Transportation Manager, 

David S. Shackleford, Westerville Outpost, regarding his impression of the May 19, 

2010 property damage event. Shackleford explained ODOT crews were setting up 

traffic control on State Route 605 on that date and “had traffic stopped in both directions 

while setting cones.” Shackleford noted, “[b]efore traffic was opened back up a driver 

went through our work zone, at a high rate of speed, and hit a cone.” Shackleford 

further noted that as the motorist hit the cone “he drove toward the (ODOT) employees, 

causing them to run to the ditch to get out of the way.” According to Shackleford, all 

ODOT crew members working traffic control on May 19, 2010 denied throwing any 

traffic control cones at the approaching vehicle. The ODOT traffic control crew 

members were identified as Frank Griffith and Tom Erdy. Defendant did not provide 

any statements from either Griffith or Erdy or the drilling crew from the ODOT central 

office who were on site at the time of the incident forming the basis of this claim. 

Apparently, Shackleford was not on the scene and did not witness the May 19, 2010 

damage occurrence. In a second e-mail, Shackleford related, “[w]e did have signs set 

(on State Route 605) to let traffic know that one lane was closed.” According to 

Shackleford, the placement of these advisory signs “is the first thing we do;” followed by 

setting cones and then turning “strobes on so that we could be seen.” Shackleford 

recalled he went to the job site on State Route 605 after being informed of the incident 

and was told by the traffic control crew that flaggers with flagger paddles were on scene 

to control traffic while cones were set to divide lanes. 

{¶ 4} Plaintiff filed a response disputing all contentions offered by defendant. 

Initially, plaintiff reasserted he did not observe any posted advisory signs (“Work 

Ahead”) on State Route 605 on the morning of May 19, 2010. Plaintiff acknowledged 

he did observe the ODOT traffic control placing cones on the roadway and made the 

decision to pass the traffic control operation by driving in the northbound lane of State 

Route 605. Plaintiff related he “felt it was safe to pass them (the ODOT crew) at a 

speed much less than the posted speed limit.” Additionally, plaintiff acknowledged he 

did observe ODOT personnel in a truck and on foot at the time he made the decision to 

pass the operation with an ODOT employee “right of center in the south-bound lane, 

walking and dropping cones approximately on the center line.” Plaintiff specifically 

denied he forced any ODOT personnel to run into a ditch adjacent to the roadway when 
he maneuvered around the traffic control operation. Plaintiff insisted an ODOT 

employee was “looking right at me and (pitched) a cone in front of my vehicle,” rather 

than “running for cover.” Plaintiff asserted that if his car struck a cone that had been 

dropped on the roadway center line, then he “would have had to veer towards the cone 

and strike the pick-up truck to accomplish this task.” Plaintiff observed the damage to 

his car was on the “front center” of the vehicle. The trier of fact finds the damage 

depicted in the submitted photographs appears to cover the lower front of the car from 

the extreme right front to the center. Plaintiff did not offer any explanation concerning 

his decision to drive away after his vehicle struck the cone rather than stopping at the 

scene immediately after impact. 

{¶ 5} 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. 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. 

{¶ 6} 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. 

{¶ 7} Additionally, defendant has a duty to exercise reasonable care in 

conducting its roadside maintenance activities to protect personal property from the 

hazards arising out of these activities. Rush v. Ohio Dept. of Transportation (1992), 91-

07526-AD. When engaged in such activities, defendant’s personnel must operate 

equipment in a safe manner. State Farm Mutual Automobile Ins. Company v. 
Department of Transportation (1998), 97-11011-AD. 

{¶ 8} The credibility of witnesses and the weight attributable to their testimony 

are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 

39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. This court is free to 

believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964), 

176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court does not find plaintiff’s 

description of the damage incident to be persuasive. Furthermore, whether or not 

advisory signs or flaggers were at the scene at the time of the incident is irrelevant 

considering plaintiff acknowledged he perceived the traffic control operation in progress 

at the time he made his decision to pass the operation. 

{¶ 9} 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. 

{¶ 10} “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 

and plaintiff had full knowledge of the operation. 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-Ohio1600. 

{¶ 11} It appears that the cause of the property damage was the negligent driving 

of plaintiff. See Wieleba-Lehotzky v. Ohio Dept. of Transp., Dist. 7, Ct. of Cl. No. 2004-

03918-AD, 2004-Ohio-4129; Adams v. Ohio Dept. of Transp., Ct. of Cl. No. 2009-

08659-AD, 2010-Ohio-2035; Young v. Ohio Dept. of Transp., Ct. of Cl. No. 2010-01484-
AD, 2010-Ohio-4220. 

 

 

 

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 

KURT J. VAN DYKE 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-09248-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: 
Kurt J. Van Dyke Jolene M. Molitoris, Director 

1216 Ross Road Department of Transportation 

Sunbury, Ohio 43074 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

11/18 

Filed 1/11/11 

Sent to S.C. reporter 3/4/11