[Cite as Odom v. Ohio Dept. of Transp., 2009-Ohio-7193.]

                                      Court of Claims of Ohio
                                                                                  The Ohio Judicial Center
                                                                          65 South Front Street, Third Floor
                                                                                     Columbus, OH 43215
                                                                           614.387.9800 or 1.800.824.8263
                                                                                      www.cco.state.oh.us




THAINE P. ODOM

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-07130-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} On July 20, 2009, at approximately 3:30 p.m., plaintiff, Thaine P. Odom,
was traveling north on Interstate 75 “just after the Monroe exit” in Warren County, when
his automobile struck a “deep 3-5" hole in the road” causing rim damage to the vehicle.
Plaintiff implied that the damage to his car was proximately caused by negligence on
the part of defendant, Department of Transportation (ODOT), in failing to maintain the
roadway free of defects such as potholes.                  Plaintiff filed this complaint seeking to
recover damages in the amount of $271.15, the cost of a replacement rim. The $25.00
filing fee was paid and plaintiff requested reimbursement of that cost along with his
damage claim.
        {¶ 2} Defendant explained that the roadway area where plaintiff’s incident
occurred was within the limits of a working construction project under the control of
ODOT contractor, John R. Jurgensen Company (Jurgensen). Defendant related that
the particular construction project “dealt with grading, draining, paving with asphalt
concrete on I-75, interchange construction of SR 122 and bridge replacements at
several locations in Warren County.” According to defendant, the construction project
limits “corresponds to state mileposts 32.10 to 40.50" on Interstate 75 and plaintiff’s
damage incident occurred “between mileposts 39.20 to 39.45 which is within the project
limits.”     Defendant asserted that this particular construction project was under the
control of Jurgensen and consequently ODOT had no responsibility for any damage or
mishap on the roadway within the construction project limits. Defendant argued that
Jurgensen, by contractual agreement, was responsible for maintaining the roadway
within the construction zone. Therefore, ODOT contended that Jurgensen is the proper
party defendant in this action. Defendant implied that all duties such as the duty to
inspect, the duty to warn, the duty to maintain, and the duty to repair defects were
delegated when an independent contractor takes control over a particular section of
roadway. Furthermore, defendant contended that plaintiff failed to introduce sufficient
evidence to prove his damage was proximately caused by roadway conditions created
by ODOT or its contractors. All construction work was to be performed in accordance
with ODOT requirements and specifications and subject to ODOT approval.           Also
evidence has been submitted to establish that ODOT personnel were present on site
conducting inspection activities.
           {¶ 3} For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his injuries.      Armstrong v. Best Buy
Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding
Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he suffered a loss
and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio
State University (1977), 76-0368-AD. However, “[i]t is the duty of a party on whom the
burden of proof rests to produce evidence which furnishes a reasonable basis for
sustaining his claim. If the evidence so produced furnishes only a basis for a choice
among different possibilities as to any issue in the case, he fails to sustain such
burden.” Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio
St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed. This court, as trier of
fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14
Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477.
           {¶ 4} Defendant had the duty to maintain its highways in a reasonably safe
condition for the motoring public. Knickel v. Ohio Department of Transportation (1976),
49 Ohio App. 2d 335, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an
insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996),
112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67
Ohio App. 3d 723, 588 N.E. 2d 864. The duty of ODOT to maintain the roadway in a
safe drivable condition is not delegable to an independent contractor involved in
roadway construction. ODOT may bear liability for the negligent acts of an independent
contractor charged with roadway construction.          Cowell v. Ohio Department of
Transportation, Ct. of Cl. No. 2003-09343-AD, jud, 2004-Ohio-151. Despite defendant’s
contentions that ODOT did not owe any duty in regard to the construction project,
defendant was charged with duties to inspect the construction site and correct any
known deficiencies in connection with the particular construction work. see Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
      {¶ 5} Alternatively, defendant denied that neither ODOT nor Jurgensen had any
notice of the particular pothole prior to plaintiff’s property damage event. Defendant
pointed out that ODOT records “indicate no calls or complaints were received regarding
the pothole in question prior to (plaintiff’s) incident. Evidence from another claim, 2009-
07288-AD, establishes the particular damage-causing pothole was present on the
roadway at 11:00 a.m. on July 19, 2009. Defendant argued that plaintiff has failed to
produce any evidence to prove the pothole that his car struck was attributable to any
conduct on either the part of ODOT or Jurgensen. Defendant submitted a letter from
Jurgensen Project Manager, Jason M. Mudd, who recalled an ODOT representative
notified Jurgensen of a pothole at milepost 38.0 on Interstate 75 on July 22, 2009. This
pothole was subsequently repaired according to Jurgensen records.
      {¶ 6} In order to find liability for a damage claim occurring in a construction
area, the court must look at the totality of the circumstances to determine whether
ODOT acted in a manner to render the highway free from an unreasonable risk of harm
for the traveling public. Feichtner v. Ohio Dept. of Transp. (1995), 114 Ohio App. 3d
346, 683 N.E. 2d 112.        In fact, the duty to render the highway free from an
unreasonable risk of harm is the precise duty owed by ODOT to the traveling public
under both normal traffic and during highway construction projects. See e.g. White v.
Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, 42, 564 N.E. 2d 462.
      {¶ 7} In order to prove a breach of the duty to maintain the highways, plaintiff
must prove, by a preponderance of the evidence, that defendant had actual or
constructive notice of the precise condition or defect alleged to have caused the
accident.   McClellan v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388.
Defendant is only liable for roadway conditions of which it has notice but fails to
reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR
64, 507 N.E. 2d 1179.
      {¶ 8} Generally, in order to recover in a suit involving damage proximately
caused by roadway conditions including potholes, plaintiff must prove that either: 1)
defendant had actual or constructive notice of the pothole and failed to respond in a
reasonable time or responded in a negligent manner, or 2) that defendant, in a general
sense, maintains its highways negligently.      Denis v. Department of Transportation
(1976), 75-0287-AD. There is no evidence that defendant had actual notice of the
pothole condition. Therefore, in order to recover plaintiff must produce evidence to
prove constructive notice of the defect or negligent maintenance.
      {¶ 9} “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of
Fahle (1950), 90 Ohio App. 195, 197-198, 48 O.O. 231, 105 N.E. 2d 429. “A finding of
constructive notice is a determination the court must make on the facts of each case not
simply by applying a pre-set time standard for the discovery of certain road hazards.”
Bussard.
      {¶ 10} “Obviously, the requisite length of time sufficient to constitute constructive
notice varies with each specific situation.” Danko v. Ohio Dept. of Transp. (Feb. 4,
1993), Franklin App. 92AP-1183.      In order for there to be a finding of constructive
notice, plaintiff must prove, by a preponderance of the evidence, that sufficient time has
elapsed after the dangerous condition appears, so that under the circumstances
defendant should have acquired knowledge of its existence.            Guiher v. Dept. of
Transportation (1978), 78-0126-AD; Gelarden v. Ohio Dept. of Transp., Dist. 4, Ct. of Cl.
No. 2007-02521-AD, 2007-Ohio-3047.
      {¶ 11} “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of
Fahle. Constructive notice of roadway potholes has been determined in multiple claims
involving less than a twenty-four hour time frame. See McGuire v. Ohio Department of
Transportation (2002), 2001-08722-AD; Piscioneri v. Ohio Dept. of Transportation,
District 12; 2002-10836-AD, 2006-Ohio-2173, jud; Kill v. Ohio Department of
Transportation, Ct. of Cl. No. 2003-01512-AD, 2003-Ohio-2620, jud; Zeigler v.
Department of Transportation, 2003-01652-AD, 2003-Ohio-2625; Sheaks v. Ohio
Department of Transportation, 2003-02179-AD, 2003-Ohio-2176, jud. Evidence in the
instant claim has shown that the pothole plaintiff’s car struck was present on the
roadway for more than twenty-eight hours prior to plaintiff’s incident.
       {¶ 12} However, in the matter of Pompignano v. Ohio Dept. of Transp., 2005-
02117-AD, jud; 2005-Ohio-3976, in a Motion for Court Review, the court concluded in
reversing a determination by the Clerk that thirteen hours constructive notice of a defect
was insufficient notice to invoke liability of ODOT. The court, in reversing the finding of
constructive notice, quoted and adopted ODOT’s argument: “It is inappropriate that
ODOT be held negligent for not patrolling every square mile of roadway every twelve
hours. Such a ruling is against all case law created outside the limited arena of these
administrative decisions.” (Defendant’s motion for court review, page 7). In its reversal
order the court also recognized a constructive notice standard involving down signage.
The court noted in finding, “that evidence of a stop sign being down for less than 24
hours was not enough time to impute constructive notice of its condition to ODOT.” See
Cushman v. Ohio Dept. of Transp. (1995), 91-11591, affirmed (March 14, 1996),
Franklin App. No. 95AP-107-8844. The court, in the present claim, is required to follow
existing precedent. Consequently, plaintiff has failed to prove sufficient constructive
notice of the damage-causing pothole to invoke liability on that premise. See Edwards
v. Ohio Dept. of Transp., Dist. 8, Ct. of Cl. No. 2006-01343-AD, 2006-Ohio-7173; Bross
v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-01495-AD, 2007-Ohio-2410. Plaintiff has
failed to prove that his property damage was connected to any conduct under the
control of defendant, that defendant was negligent in maintaining the construction area,
or that there was any negligence on the part of defendant or its agents. Taylor v.
Transportation Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation
(1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD.
Consequently, plaintiff’s claim is denied.
                               Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us




THAINE P. ODOM

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2009-07130-AD

Clerk Miles C. Durfey


ENTRY OF ADMINISTRATIVE DETERMINATION



      Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                ________________________________
                                                MILES C. DURFEY
                                                Clerk

Entry cc:

Thaine P. Odom                                  Jolene M. Molitoris, Director
68 Virginia Avenue #B                           Department of Transportation
Dayton, Ohio 45410                              1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
12/7
Filed 12/23/09
Sent to S.C. reporter 4/16/10
