[Cite as Miletic v. Ohio Dept. of Transp., 2009-Ohio-7194.]

                                       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




VEDRAN MILETIC

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2009-07288-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} On July 19, 2009, at approximately 11:00 a.m., plaintiff, Vedran Miletic,
was traveling north on Interstate 75 “around the mile 38-42 mark,” when his 2007 BMW
335 struck a “very sharp pothole” causing tire damage to the vehicle. Plaintiff implied
that the damage to his car was proximately caused by negligence on the part of
defendant, Department of Transportation (ODOT), in failing to maintain Interstate 75 in
Warren County free of defects. Plaintiff filed this complaint seeking to recover $389.94,
the total cost of a replacement tire. The filing fee was paid.
        {¶ 2} Defendant explained that the roadway area where plaintiff’s incident
occurred was within the limits of a working construction project under the control of
ODOT contractor, John R. Jurgensen Company (Jurgensen). Defendant related that
the particular construction project “dealt with grading, draining, paving with asphalt
concrete on I-75, interchange construction 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
damage incident occurred “between mileposts 39.20 to 39.45 which is within the project
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 that 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, 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 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
contention that ODOT did not owe any duty in regard to the construction project,
defendant was charged with duties to inspect the particular construction site and correct
any known deficiencies in connection with particular construction work.        Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
      {¶ 5} Alternatively, defendant argued that neither ODOT nor Jurgensen had any
knowledge of the particular damage-causing pothole located between mileposts 39.20
to 39.45 prior to plaintiff’s incident.   Defendant related that ODOT records (copy
submitted) “indicate that no calls or complaints were received regarding the pothole in
question prior to” July 19, 2009. Defendant asserted plaintiff has failed to produce
evidence to establish the pothole on Interstate 75 was attributable to any conduct on the
part of either ODOT or Jurgensen. Defendant submitted a letter from Jurgensen Project
Manager, Jason M. Mudd, who reported Jurgensen first received notice of a pothole at
milepost 38 on Interstate 75 on July 22, 2009 when an ODOT representative forwarded
a handwritten notification regarding the defect.       According to Mudd, Jurgensen
personnel patched the reported pothole on July 23, 2009.
      {¶ 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} Ordinarily 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. 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. There is no evidence
to show that any roadway defects were created by construction activity on or about July
19, 2009. There is no indication either ODOT or Jurgensen personnel were in the area
on July 19, 2009, a Sunday.
      {¶ 8} Generally, in order to recover in any suit involving injury 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. Plaintiff has not produced any evidence to indicate the length of
time that the pothole was present on the roadway prior to the incident forming the basis
of this claim. No evidence has been submitted to show that defendant had actual notice
of the pothole. Additionally, the trier of fact is precluded from making an inference of
defendant’s constructive notice, unless evidence is presented in respect to the time that
the pothole appeared on the roadway. Spires v. Ohio Highway Department (1988), 61
Ohio Misc. 2d 262, 577 N.E. 2d 458.        There is no indication that defendant had
constructive notice of the pothole. 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




VEDRAN MILETIC

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2009-07288-AD

Clerk Miles C. Durfey


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.



                                                ________________________________
                                                MILES C. DURFEY
                                                Clerk

Entry cc:

Vedran Miletic                                  Jolene M. Molitoris, Director
3907 Eileen Drive               Department of Transportation
Cincinnati, Ohio 45209          1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
12/3
Filed 12/23/09
Sent to S.C. reporter 4/16/10
