[Cite as Chaney v. Ohio Dept. of Transp., 2010-Ohio-6189.]

                                      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




JAMES ALAN CHANEY

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

     Defendant
Case No. 2010-02588-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, James Alan Chaney, filed this action contending his 2009 Honda
Element was damaged as a proximate cause of 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 noted he was
traveling on Interstate 75 “near the Ohio Route 122 interchange,” when his vehicle
struck “a large sinkhole” in the roadway causing tire and wheel damage.                   Plaintiff
recalled his property damage event occurred on January 15, 2010 at approximately
6:00 a.m. According to plaintiff, the damage-causing “sinkhole was reported the night
before (January 14, 2010) at 9:00 p.m. but no action was taken prior to my being on the
freeway nine hours later.”          Plaintiff requested damages in the amount of $536.78,
representing the cost of a replacement tire, repair expenses, and increased parking fee
expenses he incurred at the Dayton airport due to his delay in reaching that destination
after his vehicle hit the roadway defect on Interstate 75. The $25.00 filing fee was paid
and plaintiff requested reimbursement of that cost along with his damage claim.
       {¶ 2} Defendant acknowledged 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
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 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 incident occurred at
milepost 32.80, 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 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 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 the
pothole in question on the day of Plaintiff Chaney’s incident and the pothole was
repaired that same day.” Defendant advised, “[i]t should be noted that this portion of I-
75 has an average daily traffic volume of 72,000, however, only one complaint was
received on the day of plaintiff’s alleged incident.” The time of that January 15, 2010
complaint, according to submitted records, was not recorded. Defendant contended
plaintiff failed to offer any evidence of any 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 Jurgensen.
      {¶ 6} Defendant submitted a letter from Jurgensen Safety Manager, Travis
Roberts, who recorded Jurgensen was notified of a pothole “on NB I-75 near SR-122”
by the OSHP 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, “[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 material. Roberts pointed out ODOT
subsequently directed Jurgensen to close two lanes of traffic and repair the pothole with
hot mix asphalt and these repairs were completed by 7:30 p.m. on January 15, 2010.
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.
       {¶ 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, 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 some evidence ODOT’s contractor had actual notice of
the pothole at the approximate time of plaintiff’s incident. However, the simultaneous
notice occurrence is insufficient to invoke liability on an actual notice theory. 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 standard for the discovery of certain road hazards.”
Bussard at 4.
       {¶ 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 . 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 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.
       {¶ 13} Additionally, plaintiff has produced evidence to infer 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 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 plaintiff’s vehicle was damaged by a pothole that had been
patched by 2:00 a.m. on January 15, 2010 and the repair patch had failed by 6:00 a.m.
on that same day.
       {¶ 14} The fact that the pothole plaintiff’s car struck deteriorated in a time frame
of less than four 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 $536.78, 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
                                                                        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




JAMES ALAN CHANEY

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

       Case No. 2010-02588-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 $561.78, which includes the filing fee. Court costs are
assessed against defendant.




                                          DANIEL R. BORCHERT
                                          Deputy Clerk

Entry cc:

James Alan Chaney                         Jolene M. Molitoris, Director
410 Reading Road, Unit 3                  Department of Transportation
Cincinnati, Ohio 45202                    1980 West Broad Street
                                          Columbus, Ohio 43223
RDK/laa
6/22
Filed 8/6/10
Sent to S.C. reporter 12/10/10
