Many car accidents are the result not just of negligent driving, but of poor roadway maintenance as well. And while the government is generally “not an insurer of safety of travelers on its highways” under Ohio law, the state may be liable for damages caused on one of its roads if there is proof it had “actual or constructive notice” of a defect in the roadway beforehand. In some cases, it may be the state’s improper maintenance of the roads was just one factor in the accident, together with a third-party driver’s negligence.

Post-Accident Investigation Report Not a “Remedial Measure,” Admissible as Evidence

For example, in a recent Ohio wrongful death lawsuit, Zavinski v. Ohio Department of Transportation, an appeals court upheld a magistrate’s decision to award monetary damages to the estate of a man killed in a September 2011 auto accident on State Route 14 in Streetsboro. The magistrate held the Ohio Department of Transportation (ODOT) was 50 percent responsible for the fatal accident.

The accident itself involved the deceased victim and a tractor-trailer operated by an uninsured driver. The tractor-trailer crossed the center line of Route 14 and collided with the plaintiff’s vehicle, killing him. Local police investigated the accident and subsequently determined through “friction testing” that a repaving job completed on Route 14 a few months before the accident resulted in the road having “insufficient friction in generally all circumstances.” Essentially, road conditions were too slick and contributed to the tractor-trailer “hydroplaning” just prior to the collision with the victim’s car.

Based on this and other evidence, the victim’s estate filed a claim against ODOT. The case was tried before a magistrate, who determined ODOT and the tractor-trailer driver were equally responsible for the accident. The magistrate said ODOT was liable for $1,489,261 in damages, less $1.135 million already received by the estate from the victim’s uninsured motorist carrier.

On appeal, the Ohio Tenth District Court of Appeals rejected ODOT’s multiple challenges to the magistrate’s ruling. Of particular note, the appeals court said the magistrate did not commit legal error in considering the results of the post-accident friction testing report. ODOT argued that under Ohio court rules, any “[e]vidence of subsequent remedial measures is inadmissible to prove negligence.” That is to say, you cannot cite a defendant’s decision to make repairs after-the-fact as an proof the road was defective in the first place. But as the Tenth District explained, the friction testing here was not a “remedial measure.” It was simply part of a post-accident investigation initiated by local police. The evidence was therefore admissible.

The Tenth District also held the magistrate improperly used the estate’s uninsured motorist benefits to offset the judgment against ODOT. The insurance money compensated the estate for the loss caused by the negligent uninsured tractor-trailer driver, the Court observed. It did not cover ODOT’s negligence. The Department is therefore liable for the entire $1.489 million judgment.

Contact the Cleveland Personal Injury Lawyers at Tittle & Perlmuter Today

No amount of money can ever compensate a family for the loss of a loved one. But wrongful death lawsuits are not just about the money–they are also about holding negligent parties accountable. If you need advice or assistance in pursuing a wrongful death claim from an experienced Cleveland personal injury attorney, call Tittle & Perlmuter today at (216) 308-1522.

 

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