[Cite as Corsaro v. Ohio Dept. of Transp., 2011-Ohio-7025.]



                                      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




LINDSEY ALICIA CORSARO

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant


Case No. 2011-09659-AD

Deputy Clerk Daniel R. Borchert

                                     MEMORANDUM DECISION

        {¶ 1} On June 24, 2011, at approximately 1:15 p.m., plaintiff, Lindsey Corsaro,
was traveling “on 90 West and got onto the 77 south ramp” when she struck a pothole
and damaged the front driver’s side of her car. 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 in a
construction area.        Plaintiff filed this complaint seeking to recover damages in the
amount of $1,010.40, the cost of associated 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, Walsh Construction (Walsh). Defendant explained
that the construction project “dealt with designing and constructing a new bridge over
the Cuyahoga River Valley on I-90 at milepost 14.90 in Cuyahoga County.” Defendant
asserted that this particular construction project was under the control of Walsh and
consequently, DOT had no responsibility for any damage or mishap on the roadway
within the construction project limits.            Defendant argued that Walsh, by contractual
agreement, was responsible for maintaining the roadway within the construction zone.
Therefore, DOT reasoned that Walsh is the proper party defendant in this action.
      {¶ 3} 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.
      {¶ 4} 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.
      {¶ 5} 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.
        {¶ 6} Defendant denied that either DOT or Walsh 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.
        {¶ 7} Defendant submitted a letter from Walsh representative, Joseph Wilson,
who maintained that the ramp was resurfaced during the overnight hours of June 22-23,
2011, and that the work was completed before plaintiff’s incident occurred. Wilson
explained that “[s]ubsequent inspections of this area reveal no potholes or areas of
asphalt paving which were patched after resurfacing.”                    Wilson also claimed that
photographs of plaintiff’s damaged vehicle were supplied by Harden Auto Body, Inc.
and depict damage that is inconsistent with a vehicle striking a pothole.1                      Wilson
reiterated the DOT position that neither DOT nor Walsh had any knowledge of the
pothole prior to the morning of June 24, 2011. Wilson denied that the defect plaintiff’s
car struck was caused by any direct act of Walsh personnel.
        {¶ 8} Plaintiff filed a response disputing Wilson’s statement that the ramp had
been resurfaced and that the resurfacing was complete prior to 1:15 p.m. on June 24,
2011.
        {¶ 9} 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

        1
          In her response, plaintiff informed the court that the car shown in the photographs was not her
car and plaintiff supplied images of her car and the damage described in the complaint.
Transp. (1990), 56 Ohio St. 3d 39, 42, 564 N.E. 2d 462.
        {¶ 10} 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.
        {¶ 11} In this case, upon review, insufficient evidence has been produced to infer
that the roadway was negligently maintained. Denis. 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




LINDSEY ALICIA CORSARO

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant


Case No. 2011-09659-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 defendant. Court costs are assessed against plaintiff.

                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:
Lindsey Alicia Corsaro                            Jerry Wray, Director
34830 Lakeshore Blvd. Apt. I                      Department of Transportation
Eastlake, Ohio 44095                              1980 West Broad Street
                                                  Columbus, Ohio 43223
10/10
Filed 10/18/11
Sent to S.C. reporter 3/13/12
