[Cite as Brewer v. Ohio Dept. of Transp., 2010-Ohio-5579.]

                                      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




JOSHUA BREWER

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2010-02405-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Joshua Brewer, filed this action against defendant, Department of
Transportation (ODOT), asserting that his 1998 Honda Prelude was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
roadway condition on Interstate 75 in Hamilton County. Plaintiff related that he was
traveling north on Interstate 75 on October 11, 2009 at approximately 12:15 p.m. when
his vehicle struck a pothole in the “left lane near mile marker 11.6.” Plaintiff pointed out
that the “wheel and tire” on his Honda Prelude “were severely damaged” as a result of
striking the pothole. Plaintiff requested damages in the amount of $600.00, the stated
cost of replacement parts and related repair expenses he incurred resulting from the
described incident. The filing fee was paid.
        {¶ 2} Defendant explained that the roadway area where plaintiff’s damage event
occurred was within the limits of a working construction project under the control of
ODOT contractor John R. Jurgensen Company (Jurgensen). Defendant related that the
particular construction project “dealt with planing, resurfacing with asphalt concrete and
painting existing structures on I-75 south of SR 126 to south of the Lockland
Corporation in Hamilton County.” According to defendant, the construction project limits
“corresponds to state milepost 10.09 to 11.75” on Interstate 75 and plaintiff’s damage
incident occurred at milepost 11.60, a location within the construction area limits.
Defendant asserted that this particular construction project was under the control of
Jurgensen and consequently ODOT had no responsibility for any damage or mishap on
the roadway within the construction project limits. Defendant argued that Jurgensen, by
contractual agreement, was responsible for maintaining the roadway within the
construction zone. Therefore, ODOT contended that Jurgensen 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 his 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. Also, evidence has
been submitted to establish that ODOT personnel were present onsite conducting
inspection activities.
       {¶ 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. 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 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 Jurgensen had any
notice of the particular pothole prior to plaintiff’s property damage event. Defendant
pointed out that ODOT records “indicate no calls or complaints were received regarding
the pothole in question prior to Plaintiff Brewer’s incident.” Defendant advised that, “[i]t
should be noted that this portion of I-75 has an average daily traffic volume of 157,000,
however, no other calls were received (regarding a roadway defect) prior to plaintiff’s
alleged incident.” Defendant contended plaintiff failed to offer any evidence of negligent
roadway maintenance on the part of ODOT and failed to produce evidence to establish
his property damage was attributable to conduct on either the part of ODOT or
Jurgensen.
        {¶ 6} Defendant submitted a letter from Jurgensen Safety Manager, Travis
Roberts, who recorded Jurgensen and ODOT personnel “drove the project daily and
made no note of an unsafe condition in this area.” According to records submitted by
defendant, Jurgensen was not working on the project on October 11, 2009, the stated
date of plaintiff’s damage occurrence. Roberts recorded Jurgensen “was not notified at
anytime that an unsafe condition existed at mile marker 11.6.”
        {¶ 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} In order 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, 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. There is no evidence that defendant had actual notice of the
pothole condition. 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, 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.
      {¶ 11} 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.
      {¶ 12} 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. Size of the 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. “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. No evidence has shown ODOT
had constructive notice of the pothole.
      {¶ 13} 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 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; 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




JOSHUA BREWER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

Case No. 2010-02405-AD

Clerk Miles C. Durfey
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.



                                                 ________________________________
                                                 MILES C. DURFEY
                                                 Clerk

Entry cc:

Joshua Brewer                                    Jolene M. Molitoris, Director
1220 Holly Forge Drive                           Department of Transportation
Lebanon, Ohio 45036                              1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
6/18
Filed 7/28/10
Sent to S.C. reporter 11/15/10
