When the Road Itself Is Dangerous: Suing ODOT in the Ohio Court of Claims

Published May 23, 2019 · Ohio Appeals Courts

Most fatal crashes have an obvious cause: a driver who was speeding, distracted, drunk, or careless. But sometimes the road itself is part of the story. A newly paved surface that turns slick as glass in the rain, a guardrail that should have been there, a curve that was never properly marked. When the State of Ohio built or maintains that road, the State can be held responsible.

Earlier this month, the Tenth District Court of Appeals in Columbus upheld a wrongful-death judgment against the Ohio Department of Transportation for exactly that kind of hazard. It also issued an important ruling on how a family's own uninsured motorist coverage fits together with a claim against the State.

A newly repaved road, a steady rain, and a jackknifing truck

The case is Zavinski v. Ohio Dept. of Transp., 2019-Ohio-1735, decided May 7, 2019.

According to the opinion, at about 7:40 a.m. on September 10, 2011, Dennis Zavinski, an attorney, was driving east on State Route 14 in Streetsboro in a steady rain. A westbound tractor-trailer crossed the center line and struck his car, killing him. The truck driver was uninsured, and his license was under suspension.

SR 14 had been repaved just four months earlier under an ODOT project. After the crash, Streetsboro's police chief found that the number of wet-weather crashes at that location was higher than expected and raised the concern with ODOT. ODOT tested the pavement's friction that October. Its own top expert on road-surface friction concluded that the road had insufficient available wet friction and considered it unreasonably dangerous. The technician who ran the tests noted that the surface appeared to be bleeding, a sign that too much liquid asphalt binder had risen to the surface. A driver behind the truck testified that it looked as though the back of the trailer hydroplaned.

ODOT's defense was that the truck driver alone caused the crash by applying his engine brake in a curve on a wet road and then overcorrecting, and its reconstruction expert said road friction played no role.

What the courts decided

The Court of Claims, where all lawsuits against the State are heard without a jury, found that ODOT breached its duty to keep SR 14 reasonably safe, and that both ODOT's negligence and the truck driver's negligence caused the crash. It assigned 50 percent of the fault to each. Damages were set at $478,522 in economic loss, for Mr. Zavinski's earning capacity and household services, and $2,500,000 in noneconomic damages for his widow's loss of society and mental anguish. ODOT's half came to $1,489,261.

The court then reduced that amount by $1,135,000 in "collateral benefits," including $885,000 the estate had received from the family's own uninsured motorist coverage, leaving a judgment of $354,286.

Both sides appealed. The Tenth District affirmed on every issue ODOT raised and reversed on the issue the widow raised.

ODOT was liable for the road. The court explained that ODOT has a duty to keep its highways reasonably safe, that the duty cannot be handed off to a paving contractor, and that ODOT is liable for a hazard when it had actual or constructive notice of it or created it through its own active negligence. The evidence showed that a road paved in May 2011 should have provided adequate friction for eight to ten years, yet failed friction testing within six months, and that the flushing appeared when ODOT's staff were, or should have been, on the job site. That supported the finding of negligence.

Two causes can share the blame. ODOT argued the truck driver was the only cause. The court held that a crash can have more than one proximate cause and that the evidence supported treating the slick road and the driver's error as equally responsible.

The post-crash testing came in. ODOT tried to exclude the October 2011 friction tests as a "subsequent remedial measure," the kind of after-the-fact repair that cannot be used to prove fault. The court disagreed: testing a road to find out whether it is dangerous does not change the road. Only the later diamond grinding of the pavement was a repair.

The $2.5 million award stood. ODOT called the noneconomic award excessive. The court acknowledged that it was remarkably high and larger than awards in other ODOT death cases, but upheld it based on testimony about the profound and continuing decline in Mrs. Zavinski's physical and mental health after her husband's death. Ohio's general caps on noneconomic damages do not apply to wrongful-death claims or to cases in the Court of Claims.

The uninsured motorist ruling

The most important part of the decision for many families concerns R.C. 2743.02(D), which requires recoveries against the State to be reduced by insurance proceeds and other collateral recoveries the claimant receives. Read literally, it would let the State subtract the money a family's own insurance pays.

The majority held that the statute contains a "matching" requirement grounded in constitutional due process: a collateral benefit can reduce the award against ODOT only to the extent it compensates for the same loss that the award against ODOT covers. Here, the $885,000 in uninsured motorist benefits compensated the family for the harm caused by the uninsured truck driver, who was responsible for the other 50 percent. It did not pay for ODOT's half. So it could not be deducted from the judgment against ODOT. The court reversed that deduction and sent the case back to the Court of Claims to proceed consistent with its decision.

Judge Sadler dissented on this point. In her view, the statute reaches all insurance proceeds the claimant receives, including uninsured motorist benefits, and the deduction was proper. The majority's view is the court's holding, but the split shows this is an issue the State may continue to press.

Why this matters for families in the Miami Valley

The roads that carry most of our traffic, including I-75, I-70, I-675, and state routes across Montgomery, Greene, Warren, and Miami Counties, are built and maintained under ODOT's authority in many places. When a crash involves a road condition, the questions in Zavinski are the questions in every case:

• Was the road unreasonably dangerous? Friction data, maintenance records, and crash histories matter.
• Did ODOT know, or did it create the problem? Notice is the usual battleground; a construction defect can change the analysis.
• Who else was at fault? Fault can be divided between the State and a driver, and each answers for its share.
• What insurance applies? Your own uninsured or underinsured motorist coverage may pay for the other driver's share, and after Zavinski it need not cancel out the claim against the State.

I wrote about the basics of road-defect claims, and the two-year deadline for claims against the State, in February's post on potholes and road defects, and about a fatal-intersection claim against ODOT in a 2015 post.

What this means for you

If a loved one was killed or seriously hurt and the condition of the road played any part, do not assume the other driver is the only one responsible. The State can be held liable in the Court of Claims, fault can be shared, and your own uninsured motorist coverage can work alongside a claim against ODOT. These cases are technical and evidence-heavy, and road conditions get repaired quickly. Our pages on claims against the government, wrongful death, and uninsured motorist claims explain more.