[Cite as Klisuric v. Ohio Dept. of Transp., 2011-Ohio-6910.]




                                       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 A. KLISURIC

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant


Case No. 2011-06048-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     On March 14, 2011, at approximately 7:08 a.m., plaintiff, James Klisuric,
was traveling westbound on State Route 2 “just before the Lost Nation Bridge” when he
struck “a pothole that jolted my car very hard and instantly gave me two flat tires and
damaged both rims.”             Plaintiff asserted that the damage to his automobile was
proximately caused by negligence on the part of defendant, Department of
Transportation (DOT), in maintaining a hazardous roadway condition on SR 2 in a
construction area.        Plaintiff filed this complaint seeking to recover damages in the
amount of $661.70, the cost of two replacement tires, and reimbursement for ten hours
of work loss. The filing fee was paid.
        {¶2}     Defendant acknowledged that the roadway area where plaintiff’s property
damage incident occurred was located within the limits of a working construction project
under the control of DOT contractor, Anthony Allega Cement Contractor/Great Lakes
Construction (Allega).         Defendant explained that the construction project “dealt with
grading, draining, paving with asphalt concrete on an asphalt concrete base in part,
paving with reinforced concrete paving in part, noise barrier, reinforced concrete
retraining walls, MSE walls and rehabilitating existing structures between mileposts 3.32
and 7.75 in Lake County.” Defendant asserted that this particular construction project
was under the control of Allega and consequently, DOT had no responsibility for any
damage or mishap on the roadway within the construction project limits. Defendant
argued that Allega, by contractual agreement, was responsible for maintaining the
roadway within the construction zone. Therefore, DOT reasoned that Allega 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 DOT or its contractors. All construction work was to be performed in accordance
with DOT requirements and specifications and subject to DOT approval. Also, DOT
personnel maintained an onsite inspection presence throughout the construction project
limits.
          {¶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 has 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 DOT to maintain the roadway in a safe
drivable condition is not delegable to 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 DOT 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 particular
construction work. See Roadway Express, Inc. v. Ohio Dept. of Transp. (June 28,
2001), Franklin App. 00AP-1119.
      {¶5}   Defendant denied that either DOT or Allega had any knowledge of the
particular damage-causing roadway defect plaintiff’s car struck. Defendant contended
plaintiff failed to offer any evidence of negligent roadway maintenance on the part of
ODOT. Defendant submitted an email from Allega representative, Carmen Carbone,
who explained that the “pothole occurred in the old existing pavement, not our new or
replaced pavement as shown in the attached photos. The attached investigation and
daily reports will demonstrate that the work zone had been reviewed every day prior to
the occurrence. The attached work zone review reports document road repairs were
made on Thursday, March 10, 2011, and reviewed by ODOT.” Carbone noted that the
road was inspected on March 11, 12, and 13, 2011, and that no potholes were found.
Carbone explained that “sometime during the late night due to the weather conditions
(see attached weather reports) there occurred some melting and freezing which caused
the potholes to pop.” Carbone reiterated the DOT position that neither DOT nor Allega
had any knowledge of the potholes prior to the morning of March 14, 2011. Carbone
denied that the defect plaintiff’s car struck was caused by any direct act of Allega
personnel.
      {¶6}   Plaintiff did not file a response.
      {¶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 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, 465. Defendant’s
documents suggest that the areas previously patched on March 10, 2011, were located
in the eastbound right lane of SR 2.
      {¶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.
      {¶9}   In this case, upon review, insufficient evidence has been produced to infer
that the roadway was negligently maintained. Denis. The trier of fact notes one of the
photographs submitted by defendant shows a large area of pavement deterioration
which spans several feet in length and another depicts a large, circular patched area
surrounded by severely cracked and uneven asphalt. A patch that deteriorates in less
than ten days is prima facie evidence of negligent maintenance. See Matala v. Ohio
Department of Transportation, 2003-01270-AD, 2003-Ohio-2618; Schrock v. Ohio Dept.
of Transp., Ct. of Cl. No. 2005-02460-AD, 2005-Ohio-2479.
      {¶10} However, a pothole patch which may or may not have deteriorated over a
longer time frame does not constitute, in and of itself, conclusive evidence of negligent
maintenance. See Edwards v. Ohio Department of Transportation, District 8, Ct. of Cl.
No. 2006-01343-AD, jud, 2006-Ohio-7173.        Plaintiff has failed to prove when the
pothole that damaged his car had been previously patched or that the patching material
was subject to rapid deterioration. Plaintiff has not proven negligent maintenance by
providing evidence of multiple repairs. 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
JAMES A. KLISURIC

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant


Case No. 2011-0648-AD

Acting 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
                                                  Acting Clerk

Entry cc:

James A. Klisuric                                 Jerry Wray, Director
7681 St. James Drive                              Department of Transportation
Mentor, Ohio 44060                                1980 West Broad Street
                                                  Columbus, Ohio 43223

8/3
Filed 8/11/11
Sent to S.C. reporter 1/3/12
