[Cite as Adams v. Ohio Dept. of Transp., 2010-Ohio-2035.]

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

CONNIE ADAMS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-08659-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Connie Adams, filed this action against defendant, Department of 

Transportation (ODOT), alleging her 2006 Chrysler PT Cruiser was damaged as a 

proximate cause of negligence on the part of ODOT in failing to adequately mark a 

concrete barrier at the entrance of James Street from Maple Avenue (State Route 60) in 

Zanesville. Plaintiff recalled she was traveling on Maple Avenue on October 17, 2009 at 

approximately 12:00 noon and as she approached James Street she moved into the 

turning lane (located in the center of the north south lanes of Maple Avenue) with the 

intent to turn left onto James Street. Plaintiff pointed out she stopped in the turning lane 

on Maple Avenue waiting for traffic to clear so she could make a safe turn onto James 

Street. According to plaintiff, when the oncoming traffic on Maple Avenue cleared she 

“turned left and hit a concrete barrier at the west end of James St.” Plaintiff noted her 

vehicle “went on top of the barrier.” From photographs submitted by defendant it 

appears the barrier is perhaps four to six inches in height, approximately four to six feet 

in length and located in the center of the entrance to James Street. After backing her 

PT Cruiser off the barrier, plaintiff drove into a nearby parking lot to examine the vehicle 
for damage. Plaintiff related the front end of the PT Cruiser “was very badly (torn) up 

(and) the anti-freeze was pouring out from underneath.” Plaintiff insisted the barrier was 

not marked and there were no signs to advise motorists of the presence of the barrier. 

Plaintiff explained “[t]here were no markers on the barrier where I could have possibly 

seen it in the road, also there were no signs stating no left turn” from Maple Avenue 

onto James Street. Plaintiff stated “[o]n the evening of October 17, 2009 my husband 

drove his truck to the scene of the accident and said there were black marks on the 

concrete barrier where other people had also hit it.” Plaintiff pointed out she 

subsequently on October 19, 2009, viewed a news report from a local television station 

showing the barrier on James Street with “2 tall markers on it.” 

{¶ 2} Plaintiff asserted the damage to her vehicle was proximately caused by 

negligence on the part of defendant in failing to adequately mark and advise motorists 

of the presence of a concrete barrier erected at the intersection of Maple Avenue and 

James Street. Plaintiff contended defendant failed to take any action to mark the barrier 

even after being notified of several traffic incidents prior to October 17, 2009. Plaintiff 

maintained City of Zanesville personnel “put up markers (on the barrier) because ODOT 

refused to” take any action in regard to making the barrier more visible to motorists. 

Plaintiff filed this complaint requesting damage recovery of $2,724.86, the total cost of 

automotive repair resulting from the October 17, 2009 incident. In her complaint plaintiff 

acknowledged she carries insurance coverage with a $500.00 deductible provision and 

received $2,224.86 from her insurer to cover automotive repair expenses. Plaintiff 

submitted a copy of a check from her insurer in the amount of $2,224.86. Pursuant to 

the provisions of R.C. 2743.02(D),1

 plaintiff’s damage claim is limited to $500.00. The 

filing fee was paid. 

{¶ 3} In her complaint, plaintiff listed two witnesses “to the injury, damage, or 

loss” occurrence identified as Jodi Moody and Mitzi Shook. Plaintiff submitted written 

statements from both Jodi Moody and Mitzi Shook. After reviewing both statements, the 

trier of fact finds no recorded notations in either statement would lead to the inference 

 1

 R.C. 2743.02(D) states: 

 “(D) Recoveries against the state shall be reduced by the aggregate of insurance proceeds, 

disability award, or other collateral recovery received by the claimant. This division does not apply to civil 

actions in the court of claims against a state university or college under the circumstances described in 

section 3345.40 of the Revised Code. The collateral benefits provisions of division (B)(2) of that section 
that either Moody or Shook was an eyewitness to plaintiff’s October 17, 2009 property 

damage event. Neither Moody or Shook asserted they actually saw plaintiff damage 

her car on October 17, 2009. 

{¶ 4} Defendant explained the area of State Route 60 where plaintiff’s damage 

incident occurred was located within a working construction project zone under the 

control of ODOT contractor, Perram Electric, Inc. (Perram). Defendant related the 

particular “project dealt with improving SR 60 in accordance with plans and 

specifications by numerous signal upgrades, signing upgrades and access 

management in the City of Zanesville in Muskingum County.” Defendant asserted 

Perram, by contractual agreement, was responsible for any “occurrences or mishaps” 

within the construction zone. Therefore, ODOT argued that Perram is 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. Furthermore, 

defendant maintained an onsite personnel presence in the construction project area. 

{¶ 5} 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. 

{¶ 6} Defendant has the duty to maintain its highways in a reasonably safe 

 

apply under those circumstances.” 
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. 

{¶ 7} Defendant advised that ODOT “records indicate the concrete median in 

question was installed on October 1, 2009.” Defendant’s “Daily Diary Report” (copy 

submitted) for October 1, 2009 compiled by ODOT Project Engineer, Lance 

Zimmerman, bears the notation: “Framed and poured island (concrete median) at Taco 

Bell early before they opened. Also did James St.” The “Daily Diary Report” (copy 

submitted) for October 5, 2009, also compiled by Lance Zimmerman, contains the 

following entry: “Got a call from COZ (City of Zanesville) engineer (Chip Saunders) 

describing 3 traffic accidents at James St. on Friday night (October 2, 2009). He 

(Saunders) wanted to know if ODOT could/would add more visibility to the island 

installed there. Told Chip that ODOT will put transverse lines in the turning lane and 

paint the curb of all the islands yellow. ODOT will also paint transverse lines at Taco 

Bell.” According to defendant, all of the work proposed to make the concrete median 

islands on State Route 60 more visible “was done on October 5, 2009.” Defendant 

contended plaintiff has failed to produce evidence to establish her property damage was 

attributable to any conduct on either the part of ODOT or Perram. 

{¶ 8} Defendant submitted photographs depicting the yellow painted transverse 

lines in the turning lane on State Route 60 and the yellow painted base of the concrete 

median island at the entrance to James Street. Defendant reiterated that all the 

painting shown in the photographs was completed on October 5, 2009, twelve days 
before plaintiff’s October 17, 209 damage occurrence. Defendant pointed out the 

submitted photographs “show yellow poles in the island,” but acknowledged the poles 

were not installed until after plaintiff’s incident. Defendant explained the traverse lines 

were painted and the concrete island was installed “to keep traffic moving on SR 60 and 

not have it backed up because of left turns into a business.” Defendant contended 

ODOT exercised ordinary care to keep the roadway reasonably safe by painting the 

concrete island at James on SR 60 on October 5, 2009. Defendant further contended 

plaintiff failed to prove her car was damaged as a result of ODOT breaching any duty of 

care owed to the traveling public in regard to roadway maintenance. 

{¶ 9} Plaintiff filed a response contending the damage to her car was 

proximately caused by negligence on the part of ODOT personnel in failing to 

adequately inspect the roadway and providing reasonable safety precautions to advise 

motorists of the presence of the concrete median island. Plaintiff further contended the 

measures taken; painting yellow transverse lines in the turning lane on Maple Avenue 

and painting the base of the median island at James Street, were insufficient to advise 

motorists of the obstacle presented by the median island. Plaintiff recalled she did not 

notice the transverse lines when she drove into the turning lane on Maple Avenue. 

Plaintiff suggested, “[i]f the transverse lines had been painted white they would have 

caught my eye.” Plaintiff also suggested ODOT should have had a “no left turn” sign 

installed on State Route 60 at James Street. Plaintiff pointed out other motorists 

continue to turn left from State Route 60 onto James Street and running over the 

concrete median island knocking down the poles on the island. Plaintiff argued “ODOT 

is negligent through the irresponsibility of their inspectors by not resolving this traffic 

hazard.” Plaintiff noted she had traveled State Route 60 and made many left turns onto 

James Street prior to October 17, 2009. According to plaintiff, when her damage 

incident occurred she was “concentrating on a safe time to turn, not looking at the 

pavement underneath me to look for yellow transverse lines.” Plaintiff recalled she 

“glanced over to see if there were any cars on James St. so I would not hit them.” 

Plaintiff denied seeing the concrete median island at the entrance to James Street and 

related “[m]y eyes were not looking down to look for a concrete barrier in the street that 

sits so low to the ground that it is not visible.” Plaintiff asserted ODOT was negligent in 

not sufficiently marking the concrete median island and “not putting up proper signage 
to state that there are no left turns from Maple Ave onto James St. driving from the 

south.” Plaintiff asserted the measures taken by defendant, painting traverse lines on 

State Route 60 and painting the base of the median island, were insufficient to prevent 

her property damage event. 

{¶ 10} 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. 

{¶ 11} “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 

under ODOT specifications. Plaintiff 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; 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-Ohio-1600. In fact, the sole 

cause of plaintiff’s damage was her own negligent driving. See Wieleba-Lehotzky v. 

Ohio Dept. of Transp., Dist. 7, Ct. of Cl. No. 2004-03918-AD, 2004-Ohio-4129. Plaintiff 

has not proven defendant maintained a hidden roadway defect. See Sweney v. Ohio 

Dept. of Transp., Dist 8, Ct. of Cl. No. 2009-03649-AD, 2009-Ohio-6294. The 

photographic evidence submitted establishes the concrete median island plaintiff’s 

vehicle struck was highly visible and well marked with paint. Consequently, plaintiff’s 

claim is denied. 

 

 

 
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 

CONNIE ADAMS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-08659-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: 

Connie Adams Jolene M. Molitoris, Director 

1099 Hideaway Lane Department of Transportation 

Zanesville, Ohio 43701 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

1/14 

Filed 1/27/10 

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