[Cite as Rohrer v. Ohio Dept. of Transp. (Dist. 6), 2011-Ohio-4582.]

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

TAMARA ROHRER 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION (DISTRICT 6) 

 Defendant 

Case No. 2011-01950-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} On September 15, 2010, at approximately 7:45 a.m., plaintiff, Tamara 

Rohrer, was traveling west on Interstate 70 “just before exit #80 (in the far left lane) 

when the black donut-shaped base of a construction barrel” was struck by the truck 

traveling in front of plaintiff causing the object to come “flying through the air, landing on 

the hood of my car.” The propelled object struck the front of plaintiff’s vehicle causing 

substantial body and structural damage to the vehicle. Plaintiff implied that the damage 

to the automobile 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 $607.52, 

which represents $500.00 for her insurance coverage deductible, and $107.52 for rental 

car expenses. The filing fee was paid. 

{¶2} 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, Shelly and Sands, Inc. (Shelly). Defendant related that the particular 

construction project “dealt with full depth pavement removal *** and other related works 
as specified in the plans.” According to defendant, the construction project was located 

at milepost 8.68, and plaintiff’s incident would have been “between county mileposts 

10.27 and 8.62” on I-70 in Madison County. 

{¶3} Defendant asserted that pursuant to the contract terms Shelly has control 

of the work zone which includes the beginning and end points of the highway project. 

Consequently ODOT had no responsibility for any damage or mishap on the roadway 

within the construction project limits. Defendant argued that Shelly, by contractual 

agreement, was responsible for maintaining the roadway within the construction zone. 

Therefore, ODOT contended that Shelly 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 either ODOT or Shelly had any notice 

“of the construction barrel on I-70” prior to plaintiff’s property-damage event. Defendant 

pointed out ODOT records document that two complaints were received at the Madison 

County Garage regarding the construction on I-70 but not because of debris in the same 

location as plaintiff’s incident. Defendant argued that plaintiff failed to produce any 

evidence to prove the damage-causing debris condition was attributable to any conduct 

on either the part of ODOT or Shelly. Defendant submitted a copy of an e-mail from 

ODOT District 6 Manager Tom Besinger who reported that during the time of plaintiff’s 

incident, work “was being performed in the eastbound lanes of I-70 in Madison County” 

and that the “three westbound lanes were free of traffic control construction barrels.” 

Besinger opined, “I feel confident that no barrels or rings were left in the westbound 

travelled lanes by Shelly and Sands.” 

{¶7} Plaintiff filed a response insisting that the base of the barrel that struck her 

car was equipment from Shelly and that Shelly was negligent. On May 4, 2011, 

defendant filed a reply to plaintiff’s response wherein defendant essentially reiterated 

the statements contained in its investigation report. 

{¶8} 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. 

{¶9} 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. Plaintiff provided 

insufficient evidence to show that any construction activity caused the debris condition. 

{¶10} Generally, in order to recover in any suit involving injury proximately 

caused by roadway conditions including debris, plaintiff must prove that either: 1) 

defendant had actual or constructive notice of the debris 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. Plaintiff has not produced any evidence to indicate the length of 

time that the debris was present on the roadway prior to the incident forming the basis 

of this claim. No evidence has been submitted to show that defendant had actual notice 

of the debris. Additionally, the trier of fact is precluded from making an inference of 

defendant’s constructive notice, unless evidence is presented in respect to the time that 

the debris appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 

Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no indication that defendant had 

constructive notice of the debris. 

{¶11} Plaintiff has not produced any evidence to infer that defendant, in a 

general sense, maintains its highways negligently or that defendant’s acts caused the 

debris to be on the roadway. Herlihy v. Ohio Department of Transportation (1999), 99-

07011-AD. 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-Ohio-7162; Nicastro v. Ohio 

Dept. of Transp., Ct. of Cl. No. 2007-09323-AD, 2008-Ohio-4190. 

{¶12} In her complaint, plaintiff acknowledged the debris plaintiff’s car struck 

was displaced by a third party, another motorist. 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 conduct needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin 

Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769, Jordan v. Ohio Dept. of 

Transp., Dist. 8, Ct. of Cl. No. 2010-01336-AD, 2010-Ohio-4583. However, defendant 

may still bear liability if it can be established some act or omission on the part of ODOT 

was the proximate cause of plaintiff’s injury. No evidence has been presented to 

establish the damage claimed was proximately caused by any act or omission on the 

part of either ODOT or Shelly. 
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 

TAMARA ROHRER 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION (DISTRICT 6) 

 Defendant 

Case No. 2011-01950-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: 

Tamara Rohrer Jerry Wray, Director 

107 Frankfort Square Department of Transportation 

Columbus, Ohio 43206 1980 West Broad Street 

 Columbus, Ohio 43223 

SJM/laa 

4/29 

Filed 6/1/11 

Sent to S.C. reporter 9/12/11