[Cite as LaTourette v. Ohio Dept. of Transp., 2010-Ohio-2187.]

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

ROBERT A. LATOURETTE 

 Plaintiff 

 v. 

THE OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-08772-AD 

Clerk Miles C. Durfey 

MEMORANDUM DECISION

{¶ 1} On October 19, 2009, at approximately 6:30 p.m., plaintiff, Robert A. 

LaTourette, was traveling north on Interstate 77 through a construction zone, “between 

the Wallings (and) Rockside/Seven Hills Road exits,” when his 2003 Volkswagen 

Passat struck a raised manhole cover causing substantial suspension damage to the 

vehicle. Plaintiff related that this particular section of Interstate 77 has “many areas in 

the far left lane where there are man holes and built up pavement around the 

construction barriers.” Plaintiff pointed out that the damage-causing manhole his car 

struck was elevated from the roadway surface and difficult to avoid due to the presence 

of construction barriers. Plaintiff asserted that the damage to his automobile was 

proximately caused by negligence on the part of defendant, Department of 

Transportation (ODOT), in failing to correct a hazardous condition in a roadway 

construction area. Plaintiff filed this complaint seeking to recover $552.63, the cost of 

automotive repair and related expenses he incurred as a result of the October 19, 2009 

incident. The filing fee was paid. 

{¶ 2} Defendant acknowledged that the roadway area where plaintiff’s property 
damage incident occurred was located within the limits of a working construction project 

under the control of ODOT contractor Kokosing Construction Company, Inc. (Kokosing). 

Defendant explained that the construction project “dealt with grading, draining, planning 

and paving with asphalt concrete to thirteen (13) structures on I-77 between county 

milepost 1.89 and 8.46 or state mileposts 148.98 to 155.55 in Cuyahoga County.” 

Defendant asserted that this particular construction project was under the control of 

Kokosing and consequently, ODOT had no responsibility for any damage or mishap on 

the roadway within the construction project limits. Defendant argued that Kokosing, by 

contractual agreement, was responsible for maintaining the roadway within the 

construction zone. Therefore, ODOT reasoned Kokosing 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 his 

damage was proximately caused by conduct attributable to either ODOT or Kokosing or 

that the damage claimed was the result of negligent maintenance. All construction work 

performed within the project limits was to be performed in accordance with ODOT 

requirements and specifications and subject to ODOT approval. Also, ODOT personnel 

maintained an onsite inspection presence throughout the construction project limits. 

{¶ 3} 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. Plaintiff 

has the burden of proving, by a preponderance of the evidence, that he 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. 
{¶ 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 that neither ODOT nor Kokosing had any 

knowledge “of the manhole cover on I-77" prior to plaintiff’s described damage 

occurrence. Defendant stated that “records indicate that no calls or complaints were 

received at the Cuyahoga County Garage regarding the manhole cover in question,” 

which ODOT located between state mileposts 151.9 to 155.48 on Interstate 77. 

Defendant’s records (copies submitted) show that prior property damage complaints 

were received in reference to the general area where plaintiff’s damage event occurred. 

However, these complaints involved construction debris damage and not manhole 

covers. 

{¶ 6} Defendant submitted a copy of an e-mail from ODOT District 12 

Construction Area Engineer, Jeffery A. Hebebrand, regarding his knowledge of 

problems with manhole covers on Interstate 77 within the construction area. Hebebrand 

referenced two prior claims involving motorists striking “manhole lids shifting from their 

respective frames.” According to Hebebrand, ODOT subsequently directed Kokosing 

“to weld the lids shut while under traffic” and the welding was completed by August 

2009. Hebebrand noted all manhole lids in the vicinity of plaintiff’s incident “were 

welded closed.” Furthermore, in a second e-mail Hebebrand wrote that “[a]ll of the 

manholes had asphalt transitions built-up around the frames per plan since traffic is 
riding on the intermediate course and the manholes were installed at the final elevation 

(top of surface course).” Hebebrand indicated that work performed by Kokosing was 

done at the direction of ODOT “per plan.” 

{¶ 7} Defendant also supplied a copy of an e-mail from Kokosing Claims 

Specialist, Pamela LeBlanc, concerning manhole cover maintenance on the Interstate 

77 construction area. LeBlanc noted that the manhole cover plaintiff’s automobile 

struck along with other manhole covers in the area “are the resultant of ODOT’s 

design.” 

{¶ 8} Plaintiff filed a response contending that he has offered evidence to prove 

his property damage was caused by a defective condition designed by ODOT and 

maintained by Kokosing. Plaintiff stated that the fact the manholes on Interstate 77 

were “built up” pursuant to ODOT design should be sufficient to establish liability. 

{¶ 9} 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 his vehicle was directly caused by 

construction activity of ODOT’s contractor prior to October 19, 2009. However, 

evidence has not shown defendant’s contractor created a hazardous condition with the 

manhole cover considering the work was performed in accordance with ODOT 

specifications and design. Also, evidence has shown that plaintiff was aware of 

pavement conditions on Interstate 77 and was responsible for taking some driving 

precautions based on road conditions. See Nicastro v. Ohio Dept. of Transp., Ct. of Cl. 

No. 2007-09323-AD, 2008-Ohio-4190. 

{¶ 10} “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 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. 

{¶ 11} 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 unreasonable 

risk of harm is the precise duty owed by ODOT to the traveling pubic 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. In the instant claim, 

plaintiff has failed to prove that defendant or its agents maintained a known hazardous 

roadway condition. Pinkney v. Dept. of Transp., Ct. of Cl. No. 2008-01707-AD, 2008-

Ohio-5166. Plaintiff has failed to prove that 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. 

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 

ROBERT A. LATOURETTE 

 Plaintiff 

 v. 

THE OHIO DEPARTMENT OF TRANSPORTATION 
 Defendant 

Case No. 2009-08772-AD 

Clerk Miles C. Durfey 

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. 

 

 ________________________________ 

 MILES C. DURFEY 

 Clerk 

Entry cc: 

Robert A. LaTourette Jolene M. Molitoris, Director 

2082 East Fourth Street Department of Transportation 

Apt. 305 1980 West Broad Street 

Cleveland, Ohio 44115 Columbus, Ohio 43223 

RDK/laa 

1/20 

Filed 2/4/10 

Sent to S.C. reporter 5/14/10