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Bernard v. Dep't of Transportation2/20/2004
DECISION
This is a negligence action brought by plaintiff as a result of personal injury that he sustained when driving his vehicle through a construction area which was maintained and inspected by defendant, Ohio Department of Transportation (ODOT). Plaintiff's spouse has asserted a claim for loss of consortium. The issues of liability and damages were bifurcated and the case proceeded to trial on the issue of liability.
The incident that gave rise to this action occurred on October 7, 1998, on Interstate 280 (I-280) in Toledo, Ohio. At the time, plaintiff was employed as a delivery driver for Bay Corrugated of Monroe, Michigan and he was en route to that location after leaving Loudenville, Ohio. There is some confusion as to the exact location where the incident occurred; the three areas discussed at trial were the Craig Street bridge, the Michigan Avenue bridge and the Greenbelt Parkway. In any event, plaintiff testified that he was driving northbound through a construction zone when his vehicle passed over a drop-off and severely "bottomed out." He contends that, as a result, the driver's seat slammed into the bottom of the truck and he sustained substantial injuries. The vehicle plaintiff was driving was a 1985 Ford cab with a 53-foot trailer attached. The trailer was 13 feet, 6 inches high and weighed approximately 7,000 pounds. Plaintiff stated that he did not stop or report the incident immediately because there was no safe place to pull over in the construction zone. He drove another 45 minutes to his employer's location, filled out an incident report, then drove himself to the hospital. Plaintiff was alone in the truck at the time of the incident and there were no witnesses to the occurrence.
In response to plaintiff's claims, defendant presented extensive evidence concerning the type of construction that was under way at the time and the methods that ODOT employed to direct traffic through the area. According to ODOT representatives, the only construction area that met plaintiff's description of the conditions where the incident occurred was the Greenbelt Parkway project. Defendant presented credible, persuasive evidence that it had no reports of any drop-off or other hazardous condition in that area.
Plaintiff also alleged that he was approximately one-quarter of a mile north of the Craig Street bridge when the incident occurred. Defendant's evidence demonstrated that there was no work being performed on the north side or northbound lane of the Craig Street bridge at the time of the incident. Additionally, the work that was being performed extended only a few hundred feet from the end of the bridge, far less than the one-quarter mile plaintiff described in his testimony. Even assuming the incident did occur in that area, defendant's evidence also established that there had been no complaints or reports of a drop-off on the Craig Street bridge. Finally, there is no evidence to establish that the Michigan Avenue bridge could have been the area where plaintiff experienced the alleged drop-off.
In order to establish actionable negligence, plaintiff must show the existence of a duty, a breach of that duty, and injury resulting proximately therefrom. Strother v. Hutchinson (1981), 67 Ohio St.2d 282. Pursuant to R.C. 5501.11, ODOT has the responsibility to construct and maintain highways in a safe and reasonable manner. However, it is not an insurer of the safety of public highways; its duty is to maintain its highways in a reasonably safe condition. Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App.3d 723, 730, citing Knickel v. Dept. of Transportation (1976), 49 Ohio App.2d 335. Further, no duty can be imposed unless plaintiff can demonstrate t
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