[Cite as McCracken v. Ohio Dept. of Transp.-8, 2010-Ohio-5222.]

                                     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




MICHAEL K. MCCRACKEN

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION-8

       Defendant

        Case No. 2010-04718-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Michael K. McCracken, filed this action against defendant,
Department of Transportation (ODOT), contending he suffered property damage as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on the entrance ramp to Interstate 75 from State Route 63 in Warren County.
Plaintiff related he was traveling on the Interstate 75 North entrance ramp when “I hit a
pothole and bent both of the aluminum wheels on the driver’s side of my car.” Plaintiff
pointed out the section of roadway where his property damage incident occurred was
located within a roadway construction area. Plaintiff recalled the described incident
occurred on February 19, 2010. Plaintiff requested damage recovery in the amount of
$1,000.00, the stated total cost of two replacement rims. The filing fee was paid.
        {¶ 2} Defendant acknowledged the roadway area where plaintiff’s incident
occurred was within the limits of a working construction project under the control of
ODOT contractor, John R. Jurgensen Company (Jurgensen). Defendant explained the
particular construction project “dealt with widening I-75 between Cincinnati-Dayton
Road and SR 122 in Butler and Warren Counties.”                   According to defendant, the
construction project limits “corresponds (to) state mileposts 21.0 to 32.0" on Interstate
75 and plaintiff’s damage incident occurred at milepost 29.13, 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 on site
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 had 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 that no calls or complaints were received
regarding a pothole prior to Plaintiff McCracken’s incident.” Defendant advised, “[i]t
should be noted that this portion of I-75 has an average daily traffic volume between
73,320 and 93,130, however, no other complaints 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. Defendant denied receiving any complaints before
February 19, 2010 regarding a pothole on the Interstate 75 entrance ramp at
approximate milepost 29.13
       {¶ 6} Defendant submitted a letter from Jurgensen Project Manager, Kate
Holden, who recorded she was notified of a pothole “at the end of the ramp from SR 63
to northbound I-75” on February 23, 2010 by an e-mail from Jurgensen Project
Engineer, Mark Wilson, According to Holden, this pothole on the Interstate 75 entrance
ramp was repaired on February 24, 2010.
       {¶ 7} Plaintiff filed a response again locating the damage-causing pothole “on
the ramp leading to NB I 75 from WB 63.” Plaintiff did not produce any evidence to
establish the length of time the pothole existed prior to his February 19, 2010 damage
occurrence. Plaintiff has not stated an approximate time on February 19, 2010 when
his incident occurred.
      {¶ 8} 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.
      {¶ 9} 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.
      {¶ 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. 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.
      {¶ 11} “[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.
      {¶ 12} 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.
      {¶ 13} 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.
      {¶ 14} 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




MICHAEL K. MCCRACKEN

      Plaintiff
        v.

OHIO DEPT. OF TRANSPORTATION-8

        Defendant

        Case No. 2010-04718-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:

Michael K. McCracken                             Jolene M. Molitoris, Director
2860 Kimberly Drive                              Department of Transportation
Maineville, Ohio 45039                           1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
6/1
Filed 6/29/10
Sent to S.C. reporter 10/22/10
