HOWARD, Judge.
On July 10, 1990, plaintiffs filed this action against defendant, Ohio Department of Transportation (ODOT), alleging defendant was negligent in placing obstacles in the roadway without properly detouring traffic and without proper lighting while performing road construction and/or maintenance on State Route 65. The matter was tried over a four-day period commencing on December 4, 1991. The court has duly considered the evidence and arguments presented and renders the following findings of fact and conclusions of law.
FINDINGS OF FACT
On July 21, 1988, while traveling southbound on State Route 65 ("SR 65"), plaintiff, William T. Kennedy, drove around three "Road Closed" barriers before colliding with a payloader owned by ODOT that was placed across the southbound lanes of SR 65 in front of an open construction area. As a result of this collision, plaintiff, William Kennedy, suffered severe personal injury. Nancy L. Kennedy, Administrator of the Estate of William Kennedy, was substituted as plaintiff after his demise on December 16, 1991, from causes unrelated to this accident.
During July 1988, ODOT was performing maintenance and construction work on SR 65, south of State Road in Bath Township, Allen County, Ohio. During this period of maintenance and repair, testimony revealed that SR 65 was intermittently open to local traffic, depending on the type of work in progress.
Plaintiff testified that after arriving home from work at approximately 1:30 p.m. on July 21, 1988, he fixed lunch and drank two or three beers from a twelve-pack. Later in the day, Kennedy left his house with the remainder of the twelve-pack and drove to Leon Blubaugh's house, arriving at approximately 5:30 p.m. Blubaugh testified that Kennedy arrived with eight beers remaining in the twelve-pack and each consumed four beers before plaintiff left to return home. Upon plaintiff's departure, Blubaugh told Kennedy not to drive on SR 65 due to the construction and to use Slabtown Road as an alternate.
At the close of the work day on July 21, 1988, a construction drum was placed on either side of the "Road Closed" barricade located on SR 65 and State Road. The payloader and dirt were located on the north side of the construction trench crossing SR 65, and barrels were placed north of the trench line in both the northbound and southbound lanes. Testimony revealed that it was necessary to move the drums and barrels before the emergency vehicles could reach the accident scene.
Plaintiff, William Kennedy, testified that he remembered driving past the first two "Road Closed" barriers. It is apparent to the court that he also drove around or between the third barrier and barrels located at SR 65 and State Road. For this violation, plaintiff was cited for driving on a closed road. The court further finds that plaintiff's blood-alcohol level was 0.12 when the sample was obtained and tested two hours after the accident.
CONCLUSIONS OF LAW
Plaintiffs allege that ODOT was negligent by leaving obstacles in a roadway and not properly detouring traffic. Plaintiffs have the burden of proof to show by a preponderance of the evidence that defendant was negligent under these circumstances. It is generally accepted in Ohio that the essential elements of negligence are (1) a duty of care owing to the plaintiff, (2) a breach of that duty by a negligent act or omission, and (3) an injury proximately resulting from such breach. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467.
R.C. 5501.11 requires ODOT to construct and maintain state highways in a safe and reasonable manner; however, ODOT is not an insurer for the safety of drivers who do not use ordinary care. Knickel v. Ohio Dept. of Transp. (1976), 49 Ohio App.2d 335, 3 O.O.3d 413, 361 N.E.2d 486.
R.C. 4511.09 requires ODOT to adopt a manual and specifications for a uniform system of traffic control devices. R.C. 4511.10 authorizes ODOT to place and maintain traffic control devices, conforming to its manual and specifications, upon all state highways as is necessary.
While not all portions of the Ohio Manual of Uniform Traffic Control Devices ("OMUTCD") requiring the placement and maintenance of traffic control devices are mandatory, Lumbermens Mut. Cas. Co. v. Ohio Dept. of Transp. (1988), 49 Ohio App.3d 129, 551 N.E.2d 215, once ODOT has determined that a traffic control device is to be placed on its highway system, it has the duty to comply with the requirements of its manual and specifications. Pierce v. Ohio Dept. of Transp. (1985), 23 Ohio App.3d 124, 23 OBR 235, 491 N.E.2d 729.
Where a section of road is to be closed, the manual requires the installation of a Type III barricade at the points of closure. However, when it is necessary to provide for local traffic, Section 7F-4 of the OMUTCD provides in pertinent part:
"When a road or street is legally closed, but access must be allowed for local traffic, the Type III barricade cannot be erected completely across a roadway. Instead, an arrangement should be devised that will permit local use but effectively discourage use by through traffic * * *." (Emphasis added.)
A review of the testimony and location of the three sets of "Road Closed" signs reveal that ODOT's desire was to effectively discourage any traffic through this construction site.
Plaintiff was cited for driving upon a closed road in violation of R.C. 4511.71 and could have been cited for violations of disobeying traffic control devices (R.C. 4511.12) and failing to allow for an assured clear distance ahead (R.C. 4511.12). Further, plaintiff could have been charged with driving under the influence of alcohol in violation of R.C. 4511.19(A)(1), since his blood-alcohol test, obtained two hours after the accident, revealed a level of 0.12 of one percent by weight of alcohol in his blood, over the maximum allowable of 0.10 percent.
Upon review of the evidence and the aforementioned testimony, the court is of the opinion that the use and placement of traffic control devices conformed with the requirements of the OMUTCD. Therefore, defendant did not breach its duty of ordinary care owed to traveling motorists.
Assuming, arguendo, there is merit to plaintiffs' contention that defendant breached its duty of care, the court would not find that said negligence was the proximate cause of this accident. It is the court's opinion that the plaintiff William Kennedy's irresponsible and erratic driving was the sole proximate cause of this accident.
Accordingly, upon review of the record, the court finds and concludes that the plaintiffs have failed to prove by a preponderance of the evidence that defendant was negligent; therefore, defendant is not liable to plaintiff. Judgment is hereby rendered in favor of defendant.
Judgment for defendant.
LOWELL B. HOWARD, J., retired, of the Court of Common Pleas of Athens County, sitting by assignment.