[Cite as Ezsol v. Ohio Dept. of Transp., 2011-Ohio-3539.]

                                       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




HOLLY EZSOL

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-09850-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Holly Ezsol, filed this action against defendant, Department of
Transportation (ODOT), contending her 2003 Volkswagen Passat was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
roadway condition in a construction area on US Route 27 in Oxford, Ohio. Plaintiff
explained the front end of her car was damaged when the vehicle “bottomed out” as she
turned from US Route 27 where the roadway surface had been milled in preparation for
repaving into the driveway entrance at her place of work “Square D5735 College Corner
Pike, Oxford OH 45056.”             Plaintiff further explained the ODOT contractor John R.
Jurgensen Company (Jurgensen) “put some blacktop down right where we would pull
(our car) into our work but there was a low spot where the blacktop wasn’t meeting up
with the blacktop they put down” and the 2003 Volkswagen Passat was damaged when
the automobile traveled over this transition area. Plaintiff recalled her property damage
incident occurred on July 20, 2010 at approximately 5:00 a.m. In her complaint, plaintiff
requested damages in the amount of $203.89, the total cost of replacement parts and
repair expense. The filing fee was paid and plaintiff requested reimbursement of that
cost along with her damage claim.
      {¶ 2} Defendant acknowledged the roadway area where plaintiff’s described
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 minor widening of US 27 from
Melanee Lane/merryday Drive to the north corporation line (Ringwood Road) in the City
of Oxford in Butler County.” According to defendant, the described location of plaintiff’s
incident at her work address “places her near milepost 19.13 (on US Route 27) which is
within the project limits.” Defendant related the roadway construction work performed
by Jurgensen on US Route 27 included “adding a center turn lane, curb and gutter,
storm drainage, sidewalks, street lighting and signal improvements.”           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 on site conducting inspection activities and
supervising the project.
      {¶ 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),
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 either ODOT or Jurgensen had “notice
of the driveway on US 27 prior to plaintiff’s incident.” Defendant pointed out that ODOT
records “indicate that no calls or complaints were received at the Butler County Garage
regarding the driveway in question prior to” the incident described by plaintiff.
Defendant submitted “Daily Diary Report(s)” from ODOT Project Supervisor, Ronald
Young, who chronicled work performed by Jurgensen during the days preceding
plaintiff’s incident. The “Daily Diary Report(s)” from July 15, 2010 through July 20, 2010
noted Jurgensen milled and planed the roadway surface as well as performed work on
driveway entrances abutting US Route 27. Defendant denied receiving any complaints
regarding any driveway entrance during the time period work was performed.
      {¶ 6} Defendant submitted a letter from Jurgensen Safety Manager, Travis
Roberts, responding to plaintiff’s claim her car was damaged by a created hazardous
condition at the driveway entrance of her work place. Roberts wrote: “All drives/access
points were installed, clearly marked and maintained per specifications.”          Also,
according to Roberts, “[n]o other claims are on file in regards to drives/access points.”
Roberts advised the drives/access points were properly maintained in accordance with
ODOT specifications. Roberts attached photographs “of the location” with his letter.
One photograph apparently depicts the driveway entrance to plaintiff’s place of work
from US Route 27. From a review of the photograph the trier of fact finds an extremely
hazardous roadway condition is shown at the driveway entrance from US Route 27.
      {¶ 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 claim, has alleged that the damage to her vehicle was directly caused by
construction activity of ODOT’s contractor prior to July 20, 2010.      Additionally, the
submitted photographic evidence depicting the uneven pavement condition and surface
deviation between the edge of the driveway approach and the milled, planed portion of
US Route 27 clearly shows a created hazardous condition.
      {¶ 8} “If an injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of the negligence.       It is not
necessary that the defendant should have anticipated the particular injury.         It is
sufficient that his act is likely to result in an injury to someone.” Cascone v. Herb Kay
Co. (1983), 6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber
Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171
N.E. 327. 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.
      {¶ 9} 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
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.
Sufficient evidence to prove that a known hazardous condition existed on the roadway
after ODOT specified operations were performed and that neither ODOT nor its agents
timely corrected the condition. Plaintiff has proven her damage was proximately caused
by negligent acts and omissions on the part of ODOT onsite personnel and ODOT’s
agents. See Costello v. Ohio Dept. of Transp., Ct. of Cl. No. 2009-06052-AD, 2009-
Ohio-7157; Comb v. Ohio Dept. of Transp., 2009-08756-AD. Therefore, defendant is
liable to plaintiff in the amount of $203.89, the total cost of automotive repair, plus the
$25.00 filing fee, which may be awarded as costs pursuant to R.C. 2335.19. See Bailey
v. Ohio Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587
N.E. 2d 990.


                               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




HOLLY EZSOL

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant
         Case No. 2010-09850-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 plaintiff in the amount of $228.89, which includes the filing fee. Court costs are
assessed against defendant.




                                           DANIEL R. BORCHERT
                                           Deputy Clerk

Entry cc:

Holy Ezsol                                 Jerry Wray, Director
305 ½ West Union Street                    Department of Transportation
Liberty, Indiana 47353                     1980 West Broad Street
                                           Columbus, Ohio 43223
RDK/laa
2/23
Filed 4/7/11
Sent to S.C. reporter 7/8/11
