[Cite as Spahn v. Ohio Dept. of Transp., Dist. 8, 2011-Ohio-2129.]

                                       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




AMY SPAHN

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION (DISTRICT 8)

        Defendant

Case No. 2010-08799-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Amy Spahn, filed this action against defendant, Department of
Transportation (ODOT), contending that her 2010 Mazda 6 was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
roadway condition in a construction area on Interstate 75 North in Warren County. In
her complaint, plaintiff noted that she was traveling east on State Route 73 and when
she began to exit onto the Interstate 75 North ramp her vehicle “hit a section of
deteriorating pavement on the right side of the road;” a defective condition had
obliterated the paint white edge line area. Plaintiff related that, “[a]s we drove through
this section of the ramp a tire immediately blew and we were force to pull over.”
According to plaintiff, she later discovered that both rear tires and both rear rims on her
2010 Mazda 6 required replacement. Also, plaintiff asserted that her car required a full
alignment as a result of traveling on the deteriorated pavement condition on the
Interstate 75 North exit ramp. Plaintiff requested damage recovery in the amount of
$854.85, the stated cost of replacement parts and related repair expenses. In her
complaint, plaintiff acknowledged that she received payment from her insurer in the
amount of $345.85, to defray the cost of automotive repair.                           Pursuant to R.C.
2743.02(D)1, plaintiff’s damage claim is limited to $500.00, her insurance coverage
deductible. The filing fee was paid.
        {¶ 2} Defendant acknowledged that 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 that
the particular construction project “dealt with grading, draining, paving with asphalt
concrete on I-75 interchange reconstruction of SR 122 and bridge replacements at
several locations in Warren County.” According to defendant, the construction project
limits “corresponds to state mileposts 32.10 to 40.50” on Interstate 75 and plaintiff’s
damage incident occurred at milepost 38.80, a location within the construction area
limits. Defendant asserted that this particulr 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 that her damage was 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, 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


        1
            R.C. 2743.02(D) states:
          “(D) Recoveries against the state shall be reduced by the aggregate of insurance proceeds,
disability award, or other collateral recovery received by the claimant. This division does not apply to civil
actions in the court of claims against a state university or college under the circumstances described in
section 345.40 of the Revised Code. The collateral benefits provisions of division (B)(2) of that section
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.
       {¶ 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 involved in 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
notice of a pothole on I-75 prior to plaintiff’s incident.” Defendant pointed out that ODOT
records “indicate that no calls were received regarding the pothole in question prior to
Plaintiff Spahn’s incident.” Defendant advised that, “[i]t should be noted that this portion
of I-75 has an average daily traffic volume of 78,000, however, and no calls were

apply under those circumstances.”
received (regarding a roadway defect) prior to plaintiff’s alleged incident.” Defendant
contended that plaintiff failed to offer any evidence of negligent roadway maintenance
on the part of ODOT and failed to produce evidence to establish that her property
damage was attributable to conduct on either the part of ODOT or Jurgensen.
Defendant denied receiving any complaints before April 25, 2010 regarding a pothole on
Interstate 75 at milepost 38.80.
      {¶ 6} Defendant submitted a letter from Jurgensen Safety Manager, Travis
Roberts, regarding his recollection of roadway conditions in the vicinity of milepost
38.80 (Ramp C to northbound I-75) during April, 2010. Roberts recorded that, “Ramp
C to northbound I-75 was reduced to an 11' lane clearance per plans beginning April
12th.” Roberts advised that Jurgensen did not have any knowledge of any roadway
defect on Ramp C until April 26, 2010, the day after plaintiff’s incident. Roberts further
advised that, “[l]ong term work zone sheet from April 22nd and journal notes from April
22nd and 23rd (copies submitted) indicate that prior to the weekend (April 24, 2010 and
April 25, 2010) an inspection was completed and no areas of concern were found on
ramp C.” Roberts pointed out that the defect on Ramp C was discovered on Monday
April 26, 2010 and “[f]our point five (4.5) cubic yards of cold mix from yard stock was
used to make the repair.” Roberts specifically denied that any Jurgensen personnel had
any knowledge of the damage-causing defect prior to April 26, 2010.
      {¶ 7} Generally, 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.      However, proof of notice of a dangerous condition is not
necessary when defendant’s own agents actively cause such condition. See Bello v.
City of Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the
syllabus; Sexton v. Ohio Department of Transportation (1996), 94-13861. Plaintiff, in
the instant action, has failed to produce any evidence to establish that either ODOT or
Jurgensen had actual notice of the damage-causing pothole prior to April 25, 2010 or
that any construction work created the pothole condition. Therefore, to establish liability
for her damage, plaintiff must prove that defendant or its agents had constructive notice
of the pothole or the defect was the result of negligent maintenance.
      {¶ 8} “[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 at 4.
      {¶ 9} 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. Size of the defect is insufficient to prove notice or
duration of existence. O’Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d
287, 587 N.E. 2d 891. Plaintiff has not offered any evidence to show that either ODOT
or Jurgensen had constructive notice of the pothole at milepost 38.80.
      {¶ 10} 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 unreasonable
risk of harm is the precise duty owed by ODOT to the traveling public both under normal
traffic conditions 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; Rhodus, 67 Ohio App.
3d 723, 588 N.E. 2d 864. In the instant claim, plaintiff has failed to introduce sufficient
evidence to prove that defendant or its agents maintained a known hazardous roadway
condition. See Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-AD, 2008-
Ohio-4190.      Evidence has shown that the construction project area complied with
ODOT specifications. Plaintiff has not provided evidence to prove that the roadway
area was particularly defective or hazardous to motorists.        Reed v. Ohio Dept. of
Transp., Dist. 4, Ct. of Cl. No. 2004-08359-AD, 2005-Ohio-615.
                               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




AMY SPAHN

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION (DISTRICT 8)

      Defendant

      Case No. 2010-08799-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:

Amy Spahn                                       Jolene M. Molitoris, Director
71 Lance Drive                                  Department of Transportation
Franklin, Ohio 45005                            1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
12/1
Filed 2/8/11
Sent to S.C. reporter 4/29/11
