[Cite as Guest v. Dept. of Transp., 2010-Ohio-6324.]

                                       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




TRINA J. GUEST

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-03258-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Trina J. Guest, filed this action against defendant, Department of
Transportation (ODOT), contending her 2008 Acura TL 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 77 in Cuyahoga County. Plaintiff described her
particular damage occurrence relating her vehicle struck a pothole while “traveling north
on I-77, Cuyahoga County, far left lane, 1/4 mile south of Exit #153.” Plaintiff further
related, “I was traveling in a group of 6 vehicles of which all 6 of us hit the same pothole
with right passenger wheels, damaging tires and rims on all 6 vehicles.” Plaintiff noted
she saw three other cars pulled over on the roadway shoulder area “with similar
damage,” apparently from striking the pothole on the roadway. Plaintiff recalled her
damage incident occurred on January 4, 2010 at approximately 1:40 p.m.                   Plaintiff
further recalled she reported the pothole problem to ODOT at approximately 2:30 p.m.
on January 4, 2010 and noticed “the highway had been repaired and patched” by
January 6, 2010.          In her complaint, plaintiff requested damages in the amount of
$500.00, her insurance coverage deductible for automotive repair. The filing fee was
paid.
        {¶ 2} According to defendant, the roadway area where plaintiff’s incident
occurred was within the limits of a working construction project under the control of
ODOT contractor, Kokosing Construction Company, Inc. (Kokosing).                Defendant
explained the particular construction project “dealt with grading, pavement repair,
planning, resurfacing with asphalt concrete and widening of structures on I-77 in
Cuyahoga County.” Defendant advised the construction project limits cover an area
between state mileposts 149.00 to 155.5 on Interstate 77 and plaintiff’s incident
occurred at approximately state milepost 153.0.       Defendant asserted Kokosing, by
contractual agreement, was responsible for any damage occurrences or mishaps within
the construction zone. Therefore, ODOT argued Kokosing is the proper party defendant
in this action. Defendant implied 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 for
construction activity.   Furthermore, defendant contended plaintiff failed to introduce
sufficient evidence to prove her damage was proximately caused by roadway conditions
created by ODOT or Kokosing or any conduct attributable to ODOT or Kokosing. All
construction work was to be performed in accordance with ODOT requirements and
specifications and subject to ODOT approval.             Additionally, ODOT personnel
maintained an onsite presence performing work inspections.
        {¶ 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, 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.
      {¶ 4} Defendant has the duty to maintain its highways in a reasonable 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
contention that ODOT did not owe any duty in regard to the construction project,
defendant was charged with duties to inspect the particular construction site and correct
any known deficiencies in connection with particular construction work.         Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
      {¶ 5} Alternatively defendant argued that neither ODOT nor Kokosing had any
knowledge of the particulr damage-causing pothole prior to plaintiff’s incident.
Defendant’s records (copies submitted) show plaintiff’s husband made a telephone
complaint regarding the pothole on Interstate 77 after the incident forming the basis of
this claim. Defendant denied receiving any calls or complaints about the particular
pothole prior to plaintiff’s damage occurrence.
      {¶ 6} Defendant submitted a copy of a written statement from Kokosing
representative, Pamela LeBlanc, concerning work performed by Kokosing employees
on Interstate 77 on January 4, 2010. LeBlanc pointed out Kokosing employees repaired
potholes on that day using cold patch material. LeBlanc specifically denied the pothole
repairs were made in response to any notification from ODOT or any other entity.
LeBlanc noted the pothole patching conducted on January 4, 2010 was done “in small
areas.” LeBlanc further noted the specific roadway area where plaintiff located the
pothole her vehicle struck has been repaved and Kokosing has “not put one pound of
cold patch on any of” the newly paved area.
      {¶ 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, 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 standards 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 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




TRINA J. GUEST

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-03258-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:

Trina J. Guest                                   Jolene M. Molitoris, Director
912 Harring Road                                 Department of Transportation
Uniontown, Ohio 44685                            1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
8/3
Filed 8/31/10
Sent to S.C. reporter 12/17/10
