Maluke v. Ohio Department of Transportation

Ohio Court of Claims

Maluke v. Ohio Department of Transportation

760 N.E.2d 936, 115 Ohio Misc. 2d 24, 2001 Ohio Misc. LEXIS 26

CourtOhio Court of Claims

DecidedJanuary 11, 2001

DocketNo. 2000-01023

StatusPublished

This text of 760 N.E.2d 936 (Maluke v. Ohio Department of Transportation) is published on Counsel Stack Legal Research, covering Ohio Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Maluke v. Ohio Department of Transportation, 760 N.E.2d 936, 115 Ohio Misc. 2d 24, 2001 Ohio Misc. LEXIS 26 (Ohio Super. Ct. 2001).

Pincite

Opinion

Fred J. Shoemaker, Judge.

This case was tried to the court from November 27 to December 1, 2000, and judgment was rendered from the bench in favor of plaintiff. In accordance with that declaration, the court makes the following findings of fact and conclusions of law:

[26]*26Facts

(1) On January 7, 1998, four students from the Warren' County Career Center (“WCCC”), Christopher Heitfield, Lindsay Pennington, Victoria McCoy, and Jennifer Zimmer met at the school parking lot and got into Heitfíeld’s Chevrolet S-10 truck.¹ Heitfield exited the lot and drove northbound on S.R. 48.

(2) It had been raining throughout the day in the vicinity of the school with occasionally heavy downpours. Heitfield proceeded northbound for a short distance before turning around on a side street in order to travel southbound on S.R. 48.

(3) While proceeding southbound, Heitfield saw standing water in the traveling-lane. He attempted to slow his vehicle by downshifting and applying his brakes. As the vehicle began to slow, it traveled over the standing water, which caused the tires to hydroplane and lose traction.

(4) Heitfield lost control of the truck as it drifted left of the centerline and into the path of a northbound vehicle. The resulting collision caused Heitfield and his passengers to be ejected from the truck. Plaintiffs decedent, Jennifer Zimmer, and Victoria McCoy sustained fatal injuries.

(5) Defendant’s employees were aware that standing water accumulated on S.R. 48 in the vicinity of WCCC following periods of heavy rain. The accumulation of water on the roadway was due in part to drainage from both an adjacent field and the career center school’s service driveway. The water drainage settled in low points of S.R. 48 due to an inadequate cross-slope that predominantly affected the southbound traveling lane.

(6) The cross-slope of the southbound lane of S.R. 48 in the area where the standing water existed was significantly less than the 1.56 percent grade that was required by defendant’s design manual and the roadway plans. The slope of the approach end of the school’s service driveway and the adjoining paved roadway shoulder was also deficient and less than that required by defendant’s construction standards and the construction permit issued by defendant.

(7) The court finds that the culvert pipe underneath the service drive was of insufficient capacity to handle the volume of water that existed during periods of heavy rain.

(8) Defendant did not adequately maintain the turf shoulder that was adjacent to the roadway. The high turf shoulder acted as a dam that prevented water from draining into the culvert.

[27]*27(9) It was defendant’s practice to place high water signs on either side of the standing water to warn both northbound and southbound motorists of the hazardous condition. Defendant’s employees would set up the signs when local law enforcement officers or residents of the area notified defendant that a water hazard existed. It is probable that water accumulated at this site on many occasions that were not reported. On average, defendant had placed high water signs in front of WCCC two to three times a year since the early 1990s. Defendant did not place high water signs at the scene on the day of the incident.

(10) Although there was conflicting testimony regarding the surface area and depth of the standing water, the court finds the testimony of Lieutenant Boster and Officer Pemberton of the Clear Creek Township Police Department to be credible. Lieutenant Boster was the first law enforcement officer to arrive at the scene of the accident; he found water running across S.R. 48 at a depth of at least one to two inches. Officer Pemberton arrived approximately ten minutes after Boster and estimated that the accumulated water was three to four inches deep near the centerline of the roadway.

(11) Heitfield’s truck was equipped with tires that were mismatched in size, had uneven tread, and were in generally poor condition. Three of the four tires had tread depth that was at or below the legal minimum. The condition of the tires on Heitfield’s vehicle made the truck more susceptible to hydroplaning. However, on prior occasions, Sergeant Fritz of the Clear Creek Township Police Department had experienced hydroplaning in the area where the accident occurred while driving both his police cruiser and his personal vehicle, each of which had well-maintained tires.

Conclusions of Law

(1) In order for plaintiff to prevail upon her claims 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 the death of plaintiffs decedent. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285, 21 O.O.3d 177, 179, 423 N.E.2d 467, 469.

(2) Defendant has a duty to maintain its highways in a reasonably safe condition for the motoring public. Knickel v. Ohio Dept. of Transp. (1976), 49 Ohio App.2d 335, 3 O.O.3d 413, 361 N.E.2d 486; White v. Ohio Dept. of Transp. (1990), 56 Ohio St.3d 39, 42, 564 N.E.2d 462, 465.

(3) To constitute a nuisance, the thing or act complained of must either cause injury to the property of another, obstruct the reasonable use or enjoyment of such property, or cause physical discomfort to such person. Dorrow v. Kendrick (1987), 30 Ohio Misc.2d 40, 40, 30 OBR 481, 482, 508 N.E.2d 684, 685.

[28]*28(4) “[A] civil action based upon the maintenance of a qualified nuisance is essentially an action in tort for the negligent maintenance of a condition, which, of itself, creates an unreasonable risk of harm, ultimately resulting in injury. The dangerous condition constitutes the nuisance. The action for damages is predicated upon carelessly or negligently allowing such condition to exist.” Rothfuss v. Hamilton Masonic Temple Co. (1973), 34 Ohio St.2d 176, 180, 63 O.O.2d 270, 272, 297 N.E.2d 105, 109.

(5) Under a claim of qualified nuisance, the allegations of nuisance merge to become a negligence action. Allen, Freight Lines, Inc. v. Consol. Rail Corp. (1992), 64 Ohio St.3d 274, 275-276, 595 N.E.2d 855, 856.

(6) Defendant had notice of the recurring water problem that constituted a nuisance for at least seven years prior to the incident. Defendant’s roadway inspection records show that during the months of May, June, and July 1997, defendant designated the maintenance priority code for drainage repair on S.R. 48 near the WCCC service driveway as a “priority.” On December 10, 1997, a month before the accident, defendant changed the drainage repair priority code to “immediate.”

(7) Defendant was negligent for failing to correct the roadway and drainage conditions that caused water to accumulate in the vicinity of WCCC on S.R. 48 during periods of heavy rain.

Free access — add to your briefcase to read the full text and ask questions with AI