Sorriento v. Ohio Dept. of Transp., 85-05177

• Decision Date: 15 July 1988
• Docket Number: No. 85-05177,85-05177
• Citation: 61 Ohio Misc.2d 251,577 N.E.2d 167
• Parties: SORRIENTO v. OHIO DEPARTMENT OF TRANSPORTATION.
• Court: Ohio Court of Claims

Page 251

61 Ohio Misc.2d 251

577 N.E.2d 167

SORRIENTO v. OHIO DEPARTMENT OF TRANSPORTATION.

No. 85-05177.

Court of Claims of Ohio.

Decided July 15, 1988.

Anthony J. Celebrezze, Jr., Atty. Gen., and William J. McDonald, Asst. Atty. Gen., Columbus, for the state.

FRED J. SHOEMAKER, Judge.

Plaintiff, Miriam Jean Sorriento, in her capacity as administratrix of her daughter's estate, brought this action alleging that the defendant's negligent failure to keep State Route 170 (herein "S.R. 170") in a reasonably safe condition was the proximate cause of the accident which resulted in her daughter's death. Julie Sorriento, the decedent, was struck and killed by an automobile being driven by Donald Myers while she was walking in a southerly direction along the eastern berm of S.R. 170. The plaintiff alleges that the defendant, by allowing gravel to encroach onto the roadway from the berm, negligently caused the decedent to erroneously believe that she could walk on the gravel safely.

The defendant, Ohio Department of Transportation (herein "ODOT"), denies that it was negligent in maintaining S.R. 170 and denies that the condition of the berm was a proximate cause of the decedent's death. The defendant contends that the decedent died as a result of her own negligence in failing to diligently watch the oncoming traffic, and in failing to stay as far as practicable from the roadway.

This matter came to trial on May 26 to 27, 1988, pertaining to the sole issue of liability.

Findings of Fact

1. On May 30, 1983, at approximately 7:30 p.m., the decedent was walking with Shari Masti in a southerly direction along the eastern berm of S.R. 170;

2. On said date and time, Donald Myers was driving in a northerly direction on S.R. 170;

3. At a point approximately one hundred feet north of the S.R. 170-Brandon Avenue intersection, the automobile operated by Donald Myers struck Julie Sorriento. Julie subsequently died from the injuries she sustained in the accident;

4. Along the eastern berm of S.R. 170 exists a gravel-covered path that is used by pedestrians as a walkway. The evidence indicates that the width of the "gravel walkway" varied from four feet, four inches (4' 4"') to six feet, five inches (6' 5"') to two feet, seven inches (2' 7"'). At the widest point the gravel extended one foot, eleven inches (1' 11"') onto the northbound lane of S.R. 170;

5. The northbound lane of S.R. 170 measures eleven feet, eight inches (11' 8"') in width;

6. The fatal accident occurred during daylight; visibility was good.

Conclusions of Law

ODOT admits that S.R. 170 is under its jurisdiction. Additionally, the defendant admits that it was responsible for the maintenance and repair of S.R. 170, including the berm. Further, it is undisputed that the berm of said roadway included the gravel walkway on which the decedent had been walking.

ODOT is not an insurer of the safety of the highway under its jurisdiction. It has only a duty of ordinary care, to maintain the highway in a reasonably safe condition for those travelers who are exercising reasonable and ordinary care for their own well-being. Knickel v. Ohio Dept. of Transp. (1976), 49 Ohio App.2d 335, 3 O.O.3d 413, 361 N.E.2d 486.

R.C. 4511.50(B) provides that "[w]here a sidewalk is not available, any pedestrian walking along and upon a highway shall walk only on a shoulder, as far as practicable from the edge of the roadway." A "berm" is defined as "a ledge or shoulder, as along the edge of a paved road." Webster's New World Dictionary (2 College Ed.1980) 134.

In determining whether the defendant is liable to the plaintiff it is necessary to determine (1) whether the defendant negligently failed to keep S.R. 170 in a reasonably safe condition; (2) if the defendant negligently failed to keep the roadway in a reasonably safe condition, whether that negligence was a proximate cause of the decedent's demise; and (3) whether the defendant's negligence in failing to keep S.R. 170 in a reasonably safe condition was in excess of any negligence on the part of plaintiff's decedent.

Testimony at trial, by former ODOT employees, indicated that ODOT was aware of the existence of gravel on S.R. 170. Harold Perkins, ODOT's Mahoning County Supervisor from 1976 through April 1983, testified that the agency was aware of the problem of gravel encroaching onto S.R. 170. Perkins also testified that S.R. 170 was not cleaned frequently due to the unavailability of the necessary equipment. Finally, other documentary evidence, including photos which were part of ODOT's "photolog," shows the gravel which extended onto S.R. 170. Therefore, it has been established that there was a problem of gravel encroachment onto S.R. 170 since 1982 and that ODOT was aware of the problem. The court finds that ODOT had actual notice of the dangerous condition; at the least, ODOT had constructive notice that a problem existed in the area.

In light of the defendant's duty to maintain S.R. 170 in a reasonably safe condition for those travelers who are exercising reasonable and ordinary care for their own well-being, and the evidence of the defendant's knowledge of the gravel encroaching onto said roadway, this court finds that the defendant was negligent in failing to correct the problems created by allowing the gravel to remain on the roadway. Additionally, the court finds that the failure to correct the problems created by allowing the gravel to remain on the highway constituted a failure of the defendant's duty of ordinary care.

In view of the above conclusion, the next issue is whether the defendant's negligence was a proximate cause of the accident. In assessing the evidence offered on the issue of proximate cause, the court finds the testimony of Ohio State Highway Patrolman Jeffrey A. Thompson, the accident investigator, to be both credible and persuasive. After detailing the extent and findings of his investigation, Trooper Thompson concluded that the condition of the road, including a "rough area" on the berm and the gravel on the roadway, was the cause of the accident. According to Trooper Thompson, the "rough area" (pot holes and broken asphalt) was such that pedestrians would be deterred from walking in that area of the berm and of necessity would have to step onto the roadway. In addition, he indicated that, because there was no walkway east of the telephone pole, which is situated at the intersection of the northbound lane of S.R. 170 and the Campbell Electric parking lot, pedestrian traffic would have to walk west of the telephone pole. Since the telephone pole is situated on the eastern edge of S.R. 170, walking to the west of the telephone pole would of necessity mean walking onto the road surface of S.R. 170.

Additional evidence, concerning the issue of proximate cause, included the testimony of plaintiff's expert witness Bob Lyden, a civil engineer. Lyden testified that in his opinion the roadway with no edgelines, no striping, and gravel extended onto the surface of S.R. 170 amounted to a dangerous condition which could have been prevented.

ODOT contends that the decedent's failure to walk as far as practicable from the roadway and her failure to diligently watch the oncoming traffic was the cause of the accident which resulted in her death.

Based on the testimony of the only witness to actually investigate the accident scene, as well as...