[Cite as Best v. Ohio Dept. of Transp. , 2010-Ohio-6334.]

                                       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




SUSAN BEST

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-05820-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} On January 15, 2010, at approximately 5:35 a.m., plaintiff, Susan Best,
was traveling north on Interstate 75, “near Middletown, exit” in a roadway construction
area, when her 2010 Toyota Corolla struck a pothole causing tire and wheel damage to
the vehicle. Plaintiff contended that her property damage was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in
maintaining a hazardous roadway condition in a working construction area on Interstate
75 in Warren County. Plaintiff seeks damage recovery in the amount of $399.77, the
cost of replacement parts and related repair expenses. The filing fee was paid and
plaintiff requested reimbursement of that cost along with her damage claim.
        {¶ 2} Defendant acknowledged that the roadway area where plaintiff’s incident
occurred was located within the limits of a working construction project under the control
of ODOT contractor John R. Jurgensen Company (Jurgensen). Defendant explained
that this particular project “dealt with grading, draining, paving with asphalt concrete on
I-75, interchange reconstruction of SR 122 and bridge replacements at several locations
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in Butler and Warren Counties.” According to defendant, the construction project limits
“corresponds to state mileposts 32.10 to 40.50” on Interstate 75 and plaintiff’s incident
occurred “at state milepost 32.30,” 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 her 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.
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      {¶ 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
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),
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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 one call was received regarding a pothole
on I-75 but it is not in the same location as Plaintiff Best’s incident.” The submitted
complaint shows that a complaint about a pothole on Interstate 75 at milepost 32.820
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Case No. 2010-05820-AD                   -5-                                    ENTRY



was received on January 15, 2010. Defendant advised that, “[i]t should be noted this
portion of I-75 has an average daily traffic volume of 70,000, however, and only one call
was received for I-75 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.
      {¶ 6} Defendant submitted a letter from Jurgensen Safety Manager, Travis
Roberts, who recorded that Jurgensen was notified of a pothole “on NB I-75 near SR-
122” by the Ohio State Highway Patrol at approximately 9:00 p.m. on January 14, 2010.
According to Roberts, that pothole was promptly patched by Jurgensen personnel
beginning at 9:45 p.m. Roberts noted that when the pothole was patched at 9:45 p.m.
“[t]wo (2) lanes of traffic were closed due to the large size of the pothole; the pothole
was approximately 3.5 ft. x 28 ft.” According to Roberts, the massive pothole was
patched with cold patch material, had formed in existing area of pavement not presently
under construction, and was completely repaired by 2:00 a.m. on January 15, 2010.
Roberts reported that, “[f]our (4) hours later (Jurgensen) was contacted that a hole had
reformed” and this time repairs were made by ODOT personnel using cold patch
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material. Roberts pointed out that ODOT subsequently directed Jurgensen to close two
lanes of traffic and repair the pothole with hot mix asphalt and that these repairs were
completed by 7:30 p.m. on January 15, 2010. Roberts reported that Jurgensen “closed
two (2) lanes of traffic on I-75 NB from State Route 63 to State Route 122” on January
16, 2010. Roberts also reported that “[t]his section of roadway was cold planed and
repaved upon approval from ODOT.” The referenced section of Interstate 75 North was
from approximate milepost 29.1 to 32.8. Submitted time sheets for work performed in
patching the pothole on the night of January 14, 2010, reflect that four tons of cold mix
material were used to implement repairs. It appears from the time sheet dated January
15, 2010 that 59.21 tons of asphalt were used to effectuate pothole repairs on that date.
The submitted January 16, 2010 time sheet indicates that pothole repair was performed
starting at 5:00 a.m.
       {¶ 7} Plaintiff filed a response disputing defendant’s denial that neither ODOT
nor Jurgensen had notice of the pothole at milepost 32.30 on Interstate 75 prior to her
damage event. Plaintiff pointed out that Jurgensen Safety Manager, Travis Roberts, in
his submitted letter, acknowledged that the particular damage-causing pothole was
patched by Jurgensen by 2:00 a.m. on January 15, 2010 and had recurred less than
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Case No. 2010-05820-AD                    -7-                                     ENTRY



four hours later on that same date. In referencing the Roberts letter, plaintiff referred to
the notation about ODOT personnel patching the reformed pothole and asserted that
this constitutes evidence ODOT assumed maintenance responsibility for the roadway
area in question.
       {¶ 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
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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 insufficient evidence ODOT or Jurgensen had actual
notice that the pothole had reformed prior to plaintiff’s incident at 5:35 a.m. on January
15, 2010.   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.
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      {¶ 12} 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.
      {¶ 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. Ordinarily size of a defect (pothole) 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. However, the massive
size of a defect coupled with the knowledge that the pothole presented a recurring
problem is sufficient to prove constructive notice. Fite v. Ohio Dept. of Transp., Ct. of
Cl. No. 2009-05757-AD, 2009-Ohio-7124.
      {¶ 14} Additionally, plaintiff has produced evidence to infer that defendant
maintains the roadway negligently. Denis. Plaintiff’s evidence submitted shows that the
particular damage-causing pothole was formed when an existing patch deteriorated.
This fact alone does not provide conclusive proof of negligent maintenance. A pothole
Case No. 2010-05820-AD                  - 10 -                                   ENTRY




Case No. 2010-05820-AD                  - 10 -                                   ENTRY



patch that deteriorates in less than ten days is prima facie evidence of negligent
maintenance. Matala v. Ohio Department of Transportation, Ct. of Cl. No. 2003-01270-
AD, 2003-Ohio-2618; Schrock v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-02460-AD,
2005-Ohio-2479. Evidence has shown that plaintiff’s vehicle was damaged by a pothole
that had been patched on January 14 and 15, 2010 and the repair patch failed by 5:35
a.m. on January 15, 2010.
      {¶ 15} The fact that the pothole plaintiff’s car struck deteriorated in a time frame
of a matter of hours warrants application of the standard expressed in Matala; Fisher v.
Ohio Dept. of Transp., Ct. of Cl. No. 2007-04869-AD, 2007-Ohio-5288; Romes v. Ohio
Dept. of Transp., Ct. of Cl. No. 2008-01826-AD, 2008-Ohio-4624. Defendant is liable to
plaintiff for the damage claimed $399.77, plus the $25.00 filing fee which may be
awarded as compensable costs pursuant to R.C. 2335.19. Bailey v. Ohio Department
of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.




                              Court of Claims of Ohio
Case No. 2010-05820-AD         - 11 -                         ENTRY




Case No. 2010-05820-AD         - 11 -                         ENTRY



                                                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




SUSAN BEST

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-05820-AD

Clerk Miles C. Durfey


ENTRY OF ADMINISTRATIVE
DETERMINATION
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Case No. 2010-05820-AD                     - 12 -                                   ENTRY




          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 plaintiff in the amount of $427.77, which includes the filing fee. Court costs are
assessed against defendant.




                                            MILES C. DURFEY
                                            Clerk

Entry cc:

Susan Best                                  Jolene M. Molitoris, Director
1200 Riebel Ridge Road                      Department of Transportation
New Richmond, Ohio 45157                    1980 West Broad Street
                                            Columbus, Ohio 43223
RDK/laa
7/15
Case No. 2010-05820-AD            - 13 -                         ENTRY




Case No. 2010-05820-AD            - 13 -                         ENTRY




                             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




SUSAN BEST

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-05820-AD

Deputy Clerk Daniel R. Borchert


NUNC PRO TUNC ENTRY
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      On September 8, 2010, this court issued a memorandum decision and entry of
administrative determination rendering judgment in favor of the plaintiff in the amount of
$427.77, which included reimbursement of the $25 filing fee. A review of the claim file
reveals that plaintiff’s policy with Ohio Casualty had a $250.00 deductible. Accordingly,
the September 8, 2010 entry of administrative determination is amended and plaintiff is
granted judgment in the amount of $275.00.          Court costs are assessed against
defendant.




                                                 ________________________________
                                                 DANIEL R. BORCHERT
                                                 Deputy Clerk

Entry cc:
Case No. 2010-05820-AD           - 15 -                               ENTRY




Case No. 2010-05820-AD           - 15 -                               ENTRY



Susan Best                       Jolene M. Molitoris, Director
1200 Riebel Ridge Road                 Department of Transportation
New Richmond, Ohio 45157               1980 West Broad Street
                                       Columbus, Ohio 43223

DRB/laa
Filed 9/8/10
Sent to S.C. reporter 12/17/10
