[Cite as Fuerst v. Ohio Dept. of Transp., Dist. 4, 2011-Ohio-1112.]

                                        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




GERALD M. FUERST

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 4

        Defendant

        Case No. 2010-08683-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Gerald M. Fuerst, filed this action against defendant, Department
of Transportation (ODOT), contending his 2008 Mazda 5 was damaged as a proximate
cause of negligence on the part of ODOT in maintaining a hazardous condition in a
roadway construction area on State Route 8 in Summit County. Specifically, plaintiff
noted the rims and tire on his car were damaged when the vehicle struck a pothole on
State Route 8 North “in the lefthand lane just past the Hines Hill Road intersection.”
Plaintiff recalled the described damage incident occurred on June 9, 2010 at
approximately 3:00 p.m. Plaintiff requested damages in the amount of $637.95, the
stated cost of replacement parts and related repair expenses incurred as a result of the
June 9, 2010 incident. The filing fee was paid. With his complaint, plaintiff attached
photographs depicting the roadway area where his damage event occurred; including a
photograph showing the location of the damage-causing pothole taken after the defect
had been patched.
        {¶ 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, Kenmore Construction Co. Inc. (Kenmore). Defendant explained this
particular construction project “dealt with grading, draining, paving and resurfacing with
asphalt concrete and structure repairs between mileposts 13.30 to 15.77 of SR 8 in
Summit County.” From the description in plaintiff’s complaint, defendant located the
incident at milepost 14.90, which is within the construction area limits.        Defendant
asserted this particular project was under the control of Kenmore and consequently
ODOT had no responsibility for any damage or mishap on the roadway within the
construction project limits. Defendant argued Kenmore, by contractual agreement, was
responsible for maintaining the roadway within the construction zone. Therefore, ODOT
contended that Kenmore 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 Kenmore “had
notice of the pothole on SR 8 prior to plaintiff’s incident.” Defendant pointed out that
ODOT records “indicate that no calls or complaints were received regarding the pothole
in question prior to Plaintiff Fuerst’s incident.” Defendant submitted documentation from
Kenmore representative, Jerry Stanoch, who noted “Kenmore Constructions’s crews
were not working on June 9, 2010 on State Route 8 due to rain.” Stanoch denied
Kenmore received any calls or complaints regarding any pothole at or near milepost
14.90 on or before June 9, 2010. Defendant advised, “[i]t should be noted that this
portion of SR 8 has an average daily traffic volume of 33,330, however, no other
complaints were received (regarding potholes) 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 Kenmore.
      {¶ 6} 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.
      {¶ 7} 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.
      {¶ 8} 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.
      {¶ 9} “[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.
      {¶ 10} 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.
      {¶ 11} 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.
      {¶ 12} 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




GERALD M. FUERST

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 4

      Defendant

      Case No. 2010-08683-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:

Gerald M. Fuerst                                  Jolene M. Molitoris, Director
103 Clubstone Lane                                Department of Transportation
Cary, North Carolina 27518                        1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
11/24
Filed 1/11/11
Sent to S.C. reporter 3/4/11
