[Cite as Barazi v. Ohio Dept. of Transp., 2015-Ohio-4896.]

                              IN THE COURT OF CLAIMS OF OHIO



DANIA BARAZI

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2015-00216-AD

Clerk Mark H. Reed

MEMORANDUM DECISION


        {¶1} Plaintiff Dania Barazi filed this claim on March 17, 2015, to recover damages
which occurred when her 2014 Mercedes Benz struck a deep pothole while traveling on
the ramp to get onto I-71 Northbound at mile marker 3 in Hamilton County, Ohio. This
road is a public road maintained by the Ohio Department of Transportation. Plaintiff’s
vehicle sustained damages in the amount of $458.70. Plaintiff maintains a collision
insurance deductible of $500.00.
        {¶2} The evidence in this case reveals that the area where plaintiff had her
accident was a construction zone.                The department had contracted with Kokosing
Construction Company to do certain construction work on this section of IR 71 in
Hamilton County.
        {¶3} In a complaint presented to the Court regarding damage to motor vehicles
traveling on a state highway in a construction zone, the Court may only pass judgment
on whether the plaintiff has shown that the department breached its duty to the public in
managing the contractor and ensuring the safety of the public within the construction
zone. The department could be found negligent in this type of case only if it failed to
properly manage the contractor by reasonably inspecting the construction site and the
work performance of the contractor, or if the agency knew or should have known about
the pothole in question and failed to repair or to require the contractor to repair the road
hazard.
      {¶4} In the Investigation Report filed June 5, 2015, the defendant stated that they
had received no reports of any pothole within the construction work zone, immediately
prior to plaintiff’s accident. The contractor Kokosing also reports receiving no notice of
any potholes in the area. Thus, the Court is unable to find that the agency knew about
this pothole.   Further, a review of the Exhibits submitted by ODOT as part of its
Investigation Report does not reveal a sufficient pattern of pothole formation or other
roadway hazard creation in this construction zone that would have placed the
department or the contractor on notice that this area of the roadway was more likely to
have potholes than other similar sections of roadway.
      {¶5} As we consider whether ODOT breached its duty to the public in keeping the
construction area safe, the Court must take into account that this was an active
construction zone. Ohio law is clear that ODOT cannot guarantee the same level of
safety during a highway construction project as it can under normal traffic conditions.
Feichtner v. Ohio Dept. of Transp. (1995), 114 Ohio App.3d 346, 354; Roadway
Express, Inc. The test is whether, under the totality of the circumstances, "ODOT acted
sufficiently to render the highway reasonably safe for the traveling public during the
construction project." Basilone v. Ohio Dept. of Transp. (Feb. 13, 2001), Hamilton App.
No. 00AP-811, citing Feichtner, and Lumbermens Mut. Cas. Co. v. Ohio Dept. of
Transp. (1988), 49 Ohio App.3d. 129.
      {¶6} In this case, there is nothing in the record that would allow the Court to find
that the department did not act appropriately to manage the contractor and keep the
construction area safe. The plaintiff did not offer any evidence to counter what was in
the defendant’s report regarding this element.
      {¶7} Since the plaintiff is unable to prove that the defendant knew or should have
known about this dangerous condition, the claim must fail.




                          THE COURT OF CLAIMS OF OHIO
Case No. 2012-06637                         -3-                                    ENTRY



DANIA BARAZI

         Plaintiff

         v.

OHIO DEPARTMENT OF TRANSPORTATION

         Defendant

Case No. 2015-00216-AD

Clerk Mark H. Reed

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 absorbed by the Court.




                                           _____________________________________
                                           MARK H. REED
                                           Clerk
Entry cc:


Dania Barazi                                   Jerry Wray, Director
255 Warner Street, #307                        Ohio Department of Transportation
Cincinnati, Ohio 45219                         1980 West Broad Street
                                               Mail Stop 1500
                                               Columbus, Ohio 43223


Filed 8/24/15
Sent to S.C. Reporter 11/24/15
