[Cite as Swank v. Ohio Dept. of Transp., 2010-Ohio-2316.]

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

MICHELLE A. SWANK 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-08608-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Michelle A. Swank, filed this action against defendant, 

Department of Transportation (ODOT), alleging her 2003 Chevrolet Tahoe received 

paint damage while traveling on US Route 40 when ODOT personnel were applying 

fresh centerline paint to the roadway at approximately 11:00 a.m. on October 8, 2009. 

Plaintiff, more specifically, located her paint damage incident “on Route 40 in Tipp 

City/Huber Heights around the corner at Sullivan Rd.” According to plaintiff, yellow 

centerline paint “ran across the road (and) I was not able to go around the running paint 

because it was raining and went (across) the whole road.” Plaintiff pointed out she later 

discovered “yellow splashes down the entire left side (driver side) and on the rear of the 

auto.” Plaintiff recalled she tried to remove the paint from her vehicle by washing it “and 

then not only did the yellow paint not come off but it was up to the windows on the 

(driver’s) side; on the entire rear, and on the left (tire’s) trims.” Plaintiff asserted she 

reported her damage to ODOT employee, Jeff Whetstone, on October 9, 2009 and he 

confirmed a paint crew had applied centerline paint to US Route 40 on October 8, 2009. 

Plaintiff submitted photographs of the roadway area where her paint damage incident 
occurred. The photographs depict a yellow painted centerline with a vast area where it 

appears the centerline paint has run or bled onto the traveled portion of the roadway. 

The photographs show roadway areas where fresh yellow paint has obviously exuded 

from the application point across the roadway. Plaintiff also submitted photographs 

depicting the paint damage on her 2003 Chevrolet Tahoe. These photographs depict 

damage consistent with driving over a sizable area of fresh wet paint. Plaintiff 

contended the paint damage to her vehicle was proximately caused by negligence on 

the part of ODOT in conducting road painting operations on US Route 40 on October 8, 

2009. Plaintiff seeks recovery of damages in the amount of $2,500.00 for paint removal 

costs and car rental expenses. The filing fee was paid. 

{¶ 2} Defendant acknowledged ODOT personnel were painting the yellow 

centerline on US Route 40 in Miami County on October 8, 2009; including the roadway 

area where plaintiff asserted her damage occurred, which ODOT located at milepost 

0.69. Defendant explained three trucks were involved in the painting operation which is 

classified as “a moving work zone that comes under the authority of the Manual of 

Traffic Control for Construction and Maintenance Operations (Manual).” Defendant 

insisted all traffic control requirements mandated by the Manual were observed during 

the course of the centerline painting. Defendant pointed out the “[t]raffic control that 

was in effect for the paint operation in question included the paint striper and two pickup 

trucks with signage.” Additionally, defendant noted in describing the operation “[t]here 

were signs stating ‘Wet Paint’ and cones were placed throughout the operation on the 

RPMs (reflective pavement markers) of US 40.” Defendant insisted “[t]he cones were 

not picked up until the paint was dry and then the crew left for another operation on I75.” Defendant denied any liability in this matter arguing that plaintiff did not offer 

sufficient evidence to prove her damage was attributable to any conduct attributable to 

ODOT. Defendant asserted the paint crew did not leave the painting operation on US 

Route 40 until the yellow centerline paint was dry. Defendant advised that the painting 

crew used all proper traffic control during the painting operation and consequently, 

defendant contended ODOT discharged any duty of care owed to the motoring public. 

{¶ 3} Defendant submitted a statement from ODOT employee, Jeff Whetstone, 

regarding his knowledge of the October 8, 2009 painting activity and his contact with 

plaintiff when she reported the paint damage to her vehicle on October 9, 2009. 
Although Whetstone was in charge of the painting operation, it does not appear he was 

actually onsite during the painting. Whetstone recorded the centerline of US Route 40 

was covered during the morning of October 8, 2008 as paint was applied and was 

“released to public travel as (the) centerline cured.” Whetstone recalled “[l]ater in the 

day light rain showers moved into the area causing some washing of centerline in 

limited areas,” but the centerline remained, “intact.” Whetstone acknowledged receiving 

a telephone call from plaintiff on October 9, 2009, “informing me she had got into some 

yellow paint on Route 40 the previous day at about 11:30 a.m.” Whetstone offered the 

following written narrative of his conversation with plaintiff stating: “she (plaintiff) said it 

was a small amount (paint) on the driver’s side of the vehicle. I asked her if she made 

any attempt to wash the paint off her vehicle as it is a latex water soluble paint and 

although it had been 26 hours it may still wash off in a car wash. She stated at that time 

she made no attempt to wash the vehicle as she thought the rain would wash it off.” 

Defendant submitted a copy of Whetstone’s handwritten phone log where he 

memorialized his recollection of the conversation with plaintiff. Whetstone noted in the 

phone log the following information: “Got in paint (yellow) on 40 at 11:30 Thurs. 10/8 

called 12:50 on the 9th Fri. Noticed in the paint thurs made no attempt to remove 

thought rain would wash it.” 

{¶ 4} Defendant submitted written statements from the four ODOT employees 

involved in the October 8, 2009 painting, Mark Knoch, who worked on the paint striper, 

striper driver, Mark Hovatter, James Alexander, and Doug Snider. Snider recorded 

cones were placed on the roadway “about every 100" feet and after paint was applied 

the crew “waited about 15-20 minutes until the paint was dry and picked up our cones.” 

Alexander recalled all advisory signs of “Wet Paint” were in place on all trucks in the 

moving operation. Alexander noted cones were placed on every RPM on the centerline 

approximately every eighty feet and “[a]fter the paint was dry we picked up the cones 

and left.” Knoch recalled signage was in place, cones were positioned on the 

centerline, and the cones were not removed until “after the paint had cured.” 

Additionally, Knoch recalled “[t]he paint did not track and was dry too the touch.” Also 

Hovatter advised cones were positioned about one hundred feet apart during the 

painting procedure and the cones were not removed until “[t]he paint would not track no 

more.” Hovatter related “I got passed by a SUV or a Mini Van” at sometime while he 
was driving the paint striper. Additionally, Hovatter related, “I saw cars cross line and 

not pick up paint on tires.” 

{¶ 5} Plaintiff filed a response pointing out she submitted photographs depicting 

yellow paint running across the roadway from the centerline area and no tire marks are 

present on the roadway or centerline. Plaintiff advised the particular portion of US 

Route 40, a section over one mile long, has had the centerline repainted “since my 

formal complaint” (presumedly after November 2, 2009, the date this action was 

commenced). Plaintiff disputed defendant’s contention that she did not try to remove 

the paint from her vehicle by washing it noting, “I did attempt to wash the car off.” 

Plaintiff also disputed defendant’s assertions that cones were in place on the centerline 

until the paint had dried. Plaintiff stated “[w]hen I went by around 11:00 am (on October 

8, 2009) none of the safety precaution item that (ODOT personnel) had noted were 

present” on the roadway. Plaintiff again referenced the photographs she submitted of 

yellow paint bleeding across the road, arguing “[i]f the paint ran (across) the road it 

could not have been dry.” Furthermore, plaintiff offered that “[t]heir [sic] were no signs 

in place and there were no workers present” when she traveled on US Route 40 on 

October 8, 2009. Plaintiff reiterated she unsuccessfully attempted to wash the paint 

from her vehicle after speaking with ODOT employee, Jeff Whetstone. Plaintiff 

referenced evidence submitted by defendant (Jeff Whetstone’s phone log) regarding a 

November 2, 2009 telephone complaint by a Bob Bush who claimed he received yellow 

paint on his truck while traveling on US Route 40 in Miami County on an unspecified 

date. Apparently, the last time yellow paint was applied to US Route 40 prior to 

November 2, 2009, was October 8, 2009. 

{¶ 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} Plaintiff has the burden of proof to show her property damage was the 

direct result of the failure of defendant’s agents to exercise ordinary care in conducting 

roadway painting operations. Brake v. Department of Transportation (2000), 99-12545-

AD. A failure to exercise ordinary care may be shown in situations where motorists do 

not receive adequate or effective advisement of an ODOT painting activity. See 

Hosmer v. Ohio Department of Transportation, Ct. of Cl. No. 2002-08301-AD, 2003-

Ohio-1921. 

{¶ 9} “If an 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. 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. 

{¶ 10} 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. The 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. In the instant action, the trier of fact 

finds that the statements of plaintiff concerning fresh paint exuding onto the roadway 
are persuasive. 

{¶ 11} In the instant claim, plaintiff has provided sufficient proof to establish her 

vehicle received paint damage as a proximate cause of negligence on the part of 

defendant. Hosmer. Broz v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-08863-AD, 

2005-Ohio-453. Defendant is liable to plaintiff in the amount of $2,500.00, plus the 

$25.00 filing fee, which may be reimbursed as compensable costs pursuant to R.C. 

2335.19. See Bailey v. Ohio Department of Rehabilitation and Correction (1990), 62 

Ohio Misc. 2d 19, 587 N.E. 2d 990. 

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 

MICHELLE A. SWANK 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-08608-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 plaintiff in the amount of $2,525.00, which includes the filing fee. Court costs are 

assessed against defendant. 
 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Michelle A. Swank Jolene M. Molitoris, Director 

9290 Shroyer Drive Department of Transportation 

Tipp City, Ohio 45371 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

1/25 

Filed 2/22/10 

Sent to S.C. reporter 5/21/10