[Cite as Clark v. Ohio Dept. of Transp., 2011-Ohio-6895.]




                                       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
ALAN CLARK

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant


Case No. 2011-05467-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Alan Clark, filed this action against defendant, Department of
Transportation (ODOT), contending the right front tire on his vehicle was damaged as a
proximate result of negligence on the part of ODOT in maintaining a hazardous
condition in a construction area on State Route 2 in Lake County. Plaintiff related his
car was damaged when the vehicle struck a large pothole in the traveled portion of the
roadway. Plaintiff recalled the specific damage incident occurred on December 14,
2009. Plaintiff submitted a copy of a police report which establishes two other vehicles
also hit the pothole near the same time, at approximately 7:51 a.m. In his complaint,
plaintiff requested damages in the amount of $374.72, the total cost of a replacement
tire and related automotive repairs. The filing fee was paid.
        {¶2}     Defendant acknowledged that the area where plaintiff’s stated property
damage event occurred was located within the limits of a working construction project
under the control of ODOT contractor, Anthony Allega Cement Contractor/Great Lakes
Construction (Allega). Defendant explained this particular 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
retaining walls, MSE walls and rehabilitating existing structures between mileposts 3.32
to 7.75 (on State Route 2) in Lake County.” Defendant asserted Allega, by contractual
agreement, was responsible for roadway damage, occurrences, or mishaps within the
construction zone. Therefore, ODOT argued Allega is the proper party defendant in this
action. Defendant implied 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. All work by the contractor
was to be performed in accordance with ODOT mandated specifications and
requirements and subject to ODOT approval. Furthermore, defendant maintained an
onsite personnel presence in the construction project area.
      {¶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.
      {¶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
contention 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 particular construction work.       See Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
      {¶5}   Alternatively, defendant argued that neither ODOT nor Allega had any
knowledge “of potholes on SR 2” prior to plaintiff’s incident. Defendant contended that
plaintiff failed to produce evidence establishing his property damage was attributable to
conduct on the part of ODOT or Allega.
      {¶6}   Defendant submitted an email from Allega representative, Carmen C.
Carbone, regarding his knowledge of roadway conditions on State Route 2 at the time
and location of plaintiff’s incident. Carbone reported that the pothole on State Route 2
that plaintiff’s vehicle struck must have occurred “sometime over night or early morning
hours. As soon as we were notified of the pothole, Allega immediately began repairing
the roadway.    Allega had no prior knowledge or indication of any hazard on the
roadway.”
      {¶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
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.
      {¶8}   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.
      {¶9}      Generally, 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 ODOT or Allega had actual notice of the potholes or other defects
prior to plaintiff’s incident at 7:51 a.m. on December 14, 2009. Therefore, in order to
recover plaintiff must produce evidence to prove constructive notice of the defect or
negligent maintenance.
      {¶10} “[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, 47 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.
      {¶11} 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. To find constructive notice of a defect, evidence must
establish 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.        Ordinarily size of a defect
(pothole) 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. “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.
There is no evidence ODOT or Allega had constructive notice of any defects on State
Route 2.
       {¶12} 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. Evidence
available tends to point out the roadway was maintained property under ODOT
specifications.   Plaintiff failed to prove his 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; Vanderson v. Ohio
Dept. of Transp., Ct. of Cl. No. 2005-09961-AD, 2006-Ohio-7163; Shiffler v. Ohio Dept.
of Transp., Ct. of Cl. No. 2007-07183-AD, 2008-Ohio-1600.
                                 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

ALAN CLARK

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant



Case No. 2011-05467-AD

Acting 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 defendant. Court costs are assessed against plaintiff.




                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Acting Clerk

Entry cc:
Alan Clark                                        Jerry Wray, Director
5508 Wilson Drive                                 Department of Transportation
Mentor, Ohio 44060                                1980 West Broad Street
                                                  Columbus, Ohio 43223

8/2
Filed 8/9/11
Sent to S.C. reporter 1/3/12
