[Cite as Gardner v. Ohio Dept. of Transp., 2011-Ohio-5571.]



                                      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




JENNIFER GARDNER,                                               Case No. 2011-04746-AD

       Plaintiff,

       v.                                                       Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

       Defendant.                                               MEMORANDUM DECISION



        {¶ 1} On March 14, 2011, at approximately 6:50 a.m., plaintiff, Jennifer Gardner,

was traveling westbound on State Route 2 when she “struck a massive pothole” and

damaged her passenger side front tire.                Plaintiff asserted that   the damage to her

automobile was proximately caused by negligence on the part of defendant, Department

of Transportation (DOT), in maintaining a hazardous roadway condition on SR 2 in a

construction area.        Plaintiff filed this complaint seeking to recover damages in the

amount of $961.56, the cost of a replacement tire, wheel, and related repair expenses.

The filing fee was paid.

        {¶ 2} Defendant acknowledged that the roadway area where plaintiff’s property

damage incident occurred was located within the limits of a working construction project

under the control of DOT contractor, Anthony Allega Cement Contractor/Great Lakes

Construction (Allega).        Defendant explained that the construction project “dealt with

grading, draining, paving with asphalt concrete on an asphalt concrete base in part,
paving with reinforced concrete paving in part, noise barrier, reinforced concrete

retraining walls, MSE walls and rehabilitating existing structures between mileposts 3.32

and 7.75 in Lake County.” Defendant asserted that this particular construction project

was under the control of Allega and consequently, DOT had no responsibility for any

damage or mishap on the roadway within the construction project limits. Defendant

argued that Allega, by contractual agreement, was responsible for maintaining the

roadway within the construction zone. Therefore, DOT reasoned that Allega 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 her damage was proximately caused by roadway conditions created

by DOT or its contractors. All construction work was to be performed in accordance

with DOT requirements and specifications and subject to DOT approval. Also, DOT

personnel maintained an onsite inspection presence throughout the construction project

limits.

          {¶ 3} For plaintiff to prevail on a claim of negligence, she must prove, by a

preponderance of the evidence, that defendant owed her a duty, that it breached that

duty, and that the breach proximately caused her 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 she 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 has 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 DOT to maintain the roadway in a safe

drivable condition is not delegable to 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 DOT 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 particular

construction work. See Roadway Express, Inc. v. Ohio Dept. of Transp. (June 28,

2001), Franklin App. 00AP-1119.

      {¶ 5} Defendant denied that either DOT or Allega had any knowledge of the

particular damage-causing roadway defect plaintiff’s car struck. Defendant contended

plaintiff failed to offer any evidence of negligent roadway maintenance on the part of

ODOT.
       {¶ 6} Defendant submitted an email from Allega representative, Carmen

Carbone, who explained that the “pothole occurred in the old existing pavement, not our

new or replaced pavement as shown in the attached photos. The attached investigation

and daily reports will demonstrate that the work zone had been reviewed every day prior

to the occurrence. The attached work zone review reports document road repairs were

made on Thursday March 10, 2011, and reviewed by ODOT.” Carbone noted that the

road was inspected on March 11, 12, and 13, 2011, and that no potholes were found.

Carbone explained that “sometime during the late night due to the weather conditions

(see attached weather reports) there occurred some melting and freezing which caused

the potholes to pop.” Carbone reiterated the DOT position that neither DOT nor Allega

had any knowledge of the potholes prior to the morning of March 14, 2011. Carbone

denied that the defect plaintiff’s car struck was caused by any direct act of Allega

personnel. Plaintiff did not file a response.

       {¶ 7} 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 DOT

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 unreasonable risk of harm

is the precise duty owed by DOT to the traveling public both under normal traffic

conditions 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.        Defendant’s documents

suggest that the areas previously patched on March 10, 2011 were located in the

eastbound right lane of SR 2.

       {¶ 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.

      {¶ 9} In this case, upon review, insufficient evidence has been produced to infer

that the roadway was negligently maintained. Denis. The trier of fact notes one of the

photographs submitted by defendant shows a large area of pavement deterioration

which spans several feet in length and another depicts a large, circular patched area

surrounded by severely cracked and uneven asphalt. A patch that deteriorates in less

than ten days is prima facie evidence of negligent maintenance. See Matala v. Ohio

Department of Transportation, 2003-01270-AD, 2003-Ohio-2618;Schrock v. Ohio Dept.

of Transp., Ct. of Cl. No. 2005-02460-AD, 2005-Ohio-2479.

      {¶ 10} However, a pothole patch which may or may not have deteriorated over a

longer time frame does not constitute, in and of itself, conclusive evidence of negligent

maintenance. See Edwards v. Ohio Department of Transportation, District 8, Ct. of Cl.

No. 2006-01343-AD, jud, 2006-Ohio-7173.        Plaintiff has failed to prove when the

pothole that damaged her car had been previously patched or that the patching material

was subject to rapid deterioration. Plaintiff has not proven negligent maintenance by

providing evidence of multiple repairs. Plaintiff has not produced any evidence to infer

that defendant, in a general sense, maintains its highways negligently or that

defendant’s acts caused the defective condition.       Herlihy v. Ohio Department of

Transportation (1999), 99-07011-AD. Plaintiff has failed to prove that her damage was

proximately caused by any negligent act or omission on the part of ODOT or its agents.
See Wachs v. Dept. of Transp., Dist. 12, Ct. of Cl. No. 2005-09481-AD, 2006-Ohio-

7162; Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-AD, 2008-Ohio-

4190.
                                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




JENNIFER GARDNER,                                       Case No. 2011-04746-AD

        Plaintiff,

        v.                                              Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

        Defendant.                                      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.




                                          DANIEL R. BORCHERT
                                          Acting Clerk

Entry cc:

Jennifer Gardner                          Jerry Wray, Director
500 Trailwood Drive                       Department of Transportation
Painesville, Ohio 44077                   1980 West Broad Street
                                          Columbus, Ohio 43223



7/6
Filed 7/19/11
Sent to S.C. Reporter 10/27/11
