[Cite as Janoch v. Ohio Dept. of Transp., 2010-Ohio-6629.]

                                      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




KIM JANOCH

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2010-07105-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Kim Janoch, filed this action against defendant, Department of
Transportation (ODOT), contending her 1997 Chrysler Sebring that her minor son was
driving was totally damaged as a proximate cause of negligence on the part of ODOT in
maintaining a hazardous condition in a construction project area on State Route 43 in
Aurora, Ohio. Specifically, plaintiff related the front axle, ball joint, and tie rod end on
her car were damaged when the vehicle struck “a trench across the road at
approximately 181 N. Aurora Rd, Aurora, Ohio” that had apparently been dug by ODOT
contractor, Fabrizi Trucking and Paving Company, Inc. (Fabrizi). Plaintiff asserted that
Fabrizi, after digging the trench (actually a culvert replacement project) across the
roadway “failed to maintain it properly (and) [t]his allowed a hole to develop - 10 X 18-8
inches deep.” Plaintiff noted that when her car struck the roadway depression the axle
broke locking the steering wheel causing her son to have no control over the vehicle
resulting in the vehicle careening off the roadway approximately fifty feet until coming to
a stop in a ditch against a tree.              Plaintiff recalled the described damage incident
occurred on March 12, 2010 (Friday) at approximately 7:20 a.m. Plaintiff related Fabrizi
was not working on the culvert replacement project on March 12, 2010 and after the
damage incident “[t]hey were notified immediately and called in workers to fill the hole,
posted signs, and put barrels beside the spot that had not been“ stationed there prior to
7:20 a.m.   In her complaint, plaintiff requested damage recovery in the amount of
$2,500.00, the stated value of her 1997 Chrysler Sebring. The filing fee was paid.
      {¶ 2} Defendant acknowledged that the roadway area where plaintiff’s property
damage incident occurred was within the limits of a working construction project under
the control of ODOT contractor, Fabrizi. Defendant advised the particular construction
project “dealt with widening, resurfacing, draining, signing and signalizing roadway on
SR 43 between milepost 23.59 and 25.74 in Portage County.”               From plaintiff’s
description, defendant determined the described damage incident occurred “at milepost
23.90 on SR 43 in Portage County” which is located within the project limits. Defendant
asserted that this particular construction project was under the control of Fabrizi and
consequently ODOT had no responsibility for any damage or mishap on the roadway
within the construction project limits.   Defendant argued that Fabrizi, by contractual
agreement, was responsible for maintaining the roadway within the construction zone.
Therefore, ODOT contended that Fabrizi 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 ODOT or its contractors. All
construction work was to be performed in accordance with ODOT requirements and
specifications and subject to ODOT approval.
      {¶ 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.
      {¶ 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 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 Fabrizi had any
notice “of the pavement on SR 43 prior to plaintiff’s incident.” Defendant explained “this
portion of SR 43 (covering milepost 23.90) has an average daily traffic volume of
between 9,110 and 11,100 however, no other complaints were received on this project
in this timeframe.” Defendant contended plaintiff failed to offer evidence to establish her
property damage was attributable to any conduct on either the part of ODOT or Fabrizi.
Defendant further contended plaintiff failed to produce any evidence to prove the
construction area was negligently maintained.
      {¶ 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} Ordinarily 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.       However, proof of notice of a dangerous condition is not
necessary when defendant’s own agents actively cause such condition. Bello v. City of
Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the syllabus;
Sexton v. Ohio Department of Transportation (1996), 94-13861.           In her complaint,
plaintiff argued the damage to her car was caused by roadway conditions created by
ODOT’s contractor. The trier of fact finds defendant has provided documentation to
support the contention that the damage causing condition was created by construction
activity.
        {¶ 8} Defendant contended plaintiff did not prove her damage was caused by a
dangerous roadway condition attributable to construction work. Defendant submitted a
document purportedly from Fabrizi Project Superintendent, Chris Taylor, describing the
work performed at the culvert replacement site at milepost 23.90 on State Route 43.
The submitted document is reproduced in its entirety.
        {¶ 9} “On March 2, 2010 an existing culvert @ Sta. 127+00 Lt. was removed as
per ODOT plans and specifications. The trench was backfilled and compacted with
#304 crushed gravel. The last inch of the trench was capped with asphalt cold mix as a
temporary repair throughout construction. At the end of the day on March 2nd it was
noticed that tire ruts were developing due to moisture and settling of the trench. At this
time it was determined to place a 1" thick steel road plate with asphalt cold mix over the
trench until it was settled and safe for the travelling public. Two signs were placed at
this location. One is advising PLATE ON ROAD and the other BUMP.
        {¶ 10} “The road plate and signs were left in place until March 11, 2010. At this
time it was determined that the trench was safe for the travelling public. At the end of
the day, the plate and signs were removed and the trench was left in a safe condition.
       {¶ 11} “On March 12, 2010 it was noticed that tire ruts started to develop
overnight and asphalt cold mix was added to the trench to make a smoother transition.
This was done at approximately 10:30 am. Later that afternoon a gentleman stopped in
the field office to advise Fabrizi and ODOT of an accident that had taken place that
morning at 7:30 am. He stated his son was on his way to school and hit a pot hole that
caused his axle to break which ultimately resulted in the driver losing control and going
off the roadway. The car was totaled and a claim was filed with Fabrizi.
       {¶ 12} “Pictures were taken of the accident scene but no pictures were taken of
the pot hole due to the fact it was repaired before Fabrizi was aware that an accident
had occurred. The tire rutting (pot hole) was approximately 1" to 3" prior to the repair.
Additionally after reviewing the police report it was noticed that the tie rod on the driver
side was where the mechanical failure occurred. The rut/pot hole was on the passenger
side of the vehicle near the white edge line. Fabrizi made sure the trench was safe for
the weekend and have had no issues since.
       {¶ 13} “The incident occurred within the construction zone.         There are two
messages boards on each end of the project advising of the construction zone and also
ROAD CONSTRUCTION AHEAD/END ROAD WORK signs posted as per plans and
specifications. Furthermore there are ROUGH ROAD signs posted at various locations
throughout the project.”
       {¶ 14} Defendant submitted photographs depicting the roadway area and
plaintiff’s automobile stopped in a wooded area off the right side of State Route 42
South. These photographs admittedly taken on March 12, 2010 do not depict any traffic
control, speed limit signage, or any other advisory signage in place along the roadway.
Defendant submitted other photographs depicting the culvert replacement site after the
defective condition had been repaired and traffic control barrels were in place. Still
another submitted photograph depicts traffic control at the “entrance into area” in the
form of barrels and a “Rough Road” sign. An additional photograph of the area taken
after the March 12, 2010 damage incident depicts traffic control barrels, a “Road
Construction Ahead” sign, and a “35 MPH Zone Ahead” sign.
       {¶ 15} Defendant submitted a copy of a “Traffic Crash Report” compiled shortly
after the incident forming the basis of this claim. According to information in the “Traffic
Crash Report” the posted speed on State Route 43 at the time was 45 mph and
plaintiff’s car was traveling 45 mph when the damage event occurred. Also, this “Traffic
Crash Report” designates the only traffic control on this particular section of roadway at
the time was “pavement markings.”
       {¶ 16} Defendant may bear liability if it can be established if some act or
omission on the part of ODOT or its agents was the proximate cause of plaintiff’s injury.
This court, as the 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.
       {¶ 17} “If any injury is the nature and probable consequence of a negligent act
and it is such as should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of the negligence. It is sufficient
that his act is likely to result in an injury to someone.” Cascone v. Herb Kay Co. (1983),
6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber Co. v. First
National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E. 327.
Evidence available tends to point out the damage to plaintiff’s vehicle was caused by
roadway conditions originally created by defendant’s agents.
       {¶ 18} Generally, in order to recover in a suit involving damage proximately
caused by roadway conditions including construction defects, plaintiff must prove that
either: 1) defendant had actual or constructive notice of the defect 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 insufficient evidence ODOT or Fabrizi had
actual notice that the defective condition had reformed prior to plaintiff’s incident at 7:20
a.m. on March 12, 2010. Therefore, in order to recover on a notice rationale, plaintiff
must produce evidence to prove constructive notice of the defect.
       {¶ 19} “[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 at 4.
       {¶ 20} Generally, the trier of fact is precluded from making an inference of
defendant’s constructive notice, unless evidence is presented in respect to the time the
defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458.
       {¶ 21} In order for there to be constructive notice, plaintiff must show 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 . Ordinarily size of a defect is insufficient to
show notice or duration of existence. O’Neil v. Department of Transportation (1988), 61
Ohio Misc. 2d 287, 587 N.E. 2d 891. However, the massive size of a defect coupled
with the knowledge that the defect presented a recurring problem is sufficient to prove
constructive notice. Fite v. Ohio Dept. of Transp., Ct. of Cl. No. 2009-05757-AD, 2009-
Ohio-7124.
       {¶ 22} Additionally, plaintiff has produced evidence to infer that defendant
maintains the roadway negligently. Denis. Plaintiff’s evidence submitted shows that the
particular damage-causing defect was formed within ten days of the original
construction activity. This fact constitutes sufficient evidence of negligent maintenance
when coupled with the fact no traffic control was in place at the time of the incident and
no reduced speed signs were positioned at the site. Consequently, defendant is liable
to plaintiff for the damage claimed $2,500.00, plus the $25.00 filing fee which may be
awarded as compensable costs pursuant to R.C. 2335.19. Bailey v. Ohio Department
of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.




                               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
KIM JANOCH

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2010-07105-AD

Deputy Clerk Daniel R. Borchert


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 plaintiff in the amount of $2,525.00, which includes the filing fee. Court costs are
assessed against defendant.




                                           DANIEL R. BORCHERT
                                           Deputy Clerk

Entry cc:

Kim Janoch                                 Jolene M. Molitoris, Director
1231 Bryce Avenue                          Department of Transportation
Aurora, Ohio 44202                         1980 West Broad Street
                                           Columbus, Ohio 43223
RDK/laa
9/30
Filed 10/13/10
Sent to S.C. reporter 1/21/11
