[Cite as Pasquino v. Ohio Dept. of Transp., Dist. 12, 2010-Ohio-2034.]

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

DIANA PASQUINO 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12 

 Defendant 

Case No. 2009-08446-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Diana Pasquino, stated that she was traveling west on State 

Route 2 in Willoughby, Ohio in Lake County, “when a rock hit my hood of the car”as her 

2002 Acura passed under the Lost Nation Road bridge spanning the roadway. Plaintiff 

asserted the object that struck her car fell from the bridge spanning the roadway. 

Plaintiff pointed out “[t]here is a lot of road construction to widen the bridges and roads” 

in the area of her described damage incident. Plaintiff implied the rock which damaged 

the hood of her vehicle emanated from construction activity on the Lost Nation Road 

bridge. In her complaint, plaintiff recorded her damage event occurred at approximately 

3:00 p.m. on Sunday, October 18, 2009.1

 Also, in her complaint, plaintiff included a 

repair estimate for her car dated October 6, 2009 in the amount of $1,129.15. Plaintiff 

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

defendant, Department of Transportation (ODOT), in maintaining a hazardous condition 

in a roadway construction zone. Plaintiff seeks damage recovery in the amount of 

 1

 Plaintiff filed a response indicating her described property damage event occurred on 

September 18, 2009, a Friday. The court shall presume plaintiff’s described damage incident occurred at 
$1,129.15, the stated cost of automotive repair. The filing fee was paid. 

{¶ 2} Defendant acknowledged that the area where plaintiff’s described damage 

incident occurred was located within the limits of a working construction project under 

the control of ODOT joint venture contractors, Anthony Allega Cement Contractor/Great 

Lakes Construction (Allega/Great Lakes). Defendant explained this particular project 

“dealt with improving SR 2 by grading, draining, paving with asphalt concrete or an 

asphalt concrete base in part, noise barrier, reinforced retaining walls, MSE walls and 

rehabilitating existing structures between milepost 3.32 to 7.75 in Lake County.” 

Defendant located plaintiff’s damage occurrence from her description at milepost 5.42 

on State Route 2, an area within the limits of the construction zone. Defendant asserted 

that Allega/Great Lakes, by contractual agreement, were responsible for any damage 

occurrences or mishaps within the limits of the construction zone. Therefore, ODOT 

argued either Allega or Great Lakes should be the proper party defendant in this action. 

Defendant implied 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. 

{¶ 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 

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. 

 

approximately 3:00 p.m. on Friday September 18, 2009. 
{¶ 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 either ODOT nor Allega/Great Lakes had 

any knowledge “of rocks falling from the Lost Nation Road bridge on SR2" prior to 

plaintiff’s described damage occurrence. ODOT records indicate no calls or complaints 

were received regarding falling rock debris prior to plaintiff’s incident. Defendant related 

ODOT “first learned of plaintiff’s alleged incident on October 28, 2009" when a copy of 

her complaint was served by this court. Defendant contended plaintiff failed to produce 

evidence establishing that her property damage was attributable to any conduct on 

either the part of ODOT or joint venture contractors, Allega/Great Lakes. Defendant 

asserted plaintiff did not offer any evidence to prove ODOT negligently maintained the 

roadway 

bridge. Defendant submitted photographs depicting the Lost Nation Road bridge which 

show protective fencing on the bridge spanning State Route 2. Defendant stated “every 

precaution has been made to keep rocks and other debris from falling onto westbound 

SR2.” Defendant suggested any falling rock emanating from the bridge that was open 

to public traffic “could have come from a third party” not affiliated with either ODOT or 

the joint venture contractors. 

 Defendant submitted a letter from Allega representative Carmen C. Carbone, 
regarding work performed by Allega/Great Lakes on September 18, 2009 in the vicinity 

of the Lost Nation Road bridge. Carbone acknowledged both Allega and Great Lakes 

personnel were working on State Route 2 in the vicinity of the Lost Nation Road bridge 

on September 18, 2009. Carbone recorded “at NO time was any work being performed 

by the prime contractors and our subcontractors on the bridge, bridge roadway or bridge 

decking on or above State Route 2 on the date of September 18, 2009.” Carbone 

denied any construction vehicles “were utilizing” the bridge on September 18, 2009. 

 Also submitted was a daily report produced by Allega for construction activity on 

State Route 2 on September 18, 2009. According to this daily report and other 

submitted roadway diagrams, construction trucks hauled material on State Route 2, but 

the truck route covered did not include traveling over the Lost Nation Road bridge. The 

daily report noted Allega crews were working on Lost Nation Road north of the bridge 

“installing exfiltration trench boxes, type B.” However, it was recorded in the report that 

“[n]o trucking or excavation was performed during the installation of these boxes.” 

 Defendant provided a copy of an e-mail from Great Lakes Safety Director, 

William Hocevar, regarding work performed by that contractor on September 18, 2009. 

Hocevar offered the following information: 

 “Great Lakes was not working on or near the vicinity of Lost Nation Road the day 

of the alleged accident. Furthermore, we had not been working on or near that bridge 

since August 6, 2009, where we performed backfill operations on the abutments. 

Lastly, we have never known of any complaints, injuries, accidents or other losses 

associated with the Great Lakes’ construction of the Lost Nation Road Bridge prior to 

this notification.” 

 Hocevar did confirm “[t]he only Great Lakes Construction traffic crossing Lost 

Nation Rd. Bridge that day (September 18, 2009) was a nine yard load of concrete” for 

work being performed on a “forward abutment wingwall” on a roadway ramp. The 

concrete load was transported by one truck that did not make a return trip over the 

bridge. 

 Plaintiff filed a response disputing the assertions that ODOT contractors did not 

have any traffic on the Lost Nation Road bridge on September 18, 2009 with the 

exception of one vehicle. Plaintiff stated Allega/Great Lakes “have been working on that 

highway since March of 2009 (and) [t]hat bridge area has been closed on the east side 
so that they can work and travel through that area.” Plaintiff observed construction 

trucks hauling “dirt etc” are continually traveling in the area. Plaintiff recalled she was 

traveling west on State Route 2 in the far right lane when her damage incident occurred 

in the vicinity “where the trucks were working.” Plaintiff pointed out the rock that fell on 

the hood of her car “could come from anywhere in that area.” Plaintiff did not produce 

sufficient evidence to clarify the origin of the rock debris that damaged her car. 

 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 

constructive activity of ODOT’s contractor, on September 18, 2009. Despite her 

assertions, plaintiff has failed to prove the debris that damaged her car emanated from 

construction activity. 

 “If an injury is the natural and probable consequence of a negligent act and it is 

such as should have been foreseen in light of all the attending circumstances, the injury 

is then the proximate result of 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. 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. 

 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 both under normal traffic 

conditions 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. Plaintiff has 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; Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-AD, 

2008-Ohio-4190. 

 Evidence in the instant action tends to show plaintiff’s damage was caused by an 

act of an unidentified third party not affiliated with ODOT. 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 or its agents was the proximate cause of plaintiff’s injury. Plaintiff has 

failed to prove, by a preponderance of the evidence, that defendant failed to discharge a 

duty owed to her, or that her injury was proximately caused by defendant’s negligence. 

Plaintiff failed to show the damage-causing object at the time of the damage incident 

was connected to any conduct under the control of defendant or its agents or any 

negligence on the part of defendant or its agents. Herman v. Ohio Dept. of Transp.

(2006), 2006-05730-AD. 

 

 

 

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 
DIANA PASQUINO 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12 

 Defendant 

Case No. 2009-08446-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: 

Diana Pasquino Jolene M. Molitoris, Director 

35975 Sandy Knoll Department of Transportation 

Eastlake, Ohio 44095 1980 West Broad Street 

 Columbus, Ohio 43222 

RDK/laa 

1/11 

Filed 1/27/10 

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