[Cite as Schmidt v. Ohio Dept. of Transp., 2011-Ohio-6937.]




                                                      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




STEVEN SCHMIDT


       Plaintiff


       v.


OHIO DEPARTMENT OF TRANSPORTATION


       Defendant


Case No. 2011-06994-AD


Deputy Clerk Daniel R. Borchert


MEMORANDUM DECISION
      {¶1}   On April 26, 2011, at approximately 6:25 a.m., plaintiff,
Steven Schmidt, was traveling westbound on State Route 2 “very close to
the Lost Nation Road exit” when he struck a pothole and damaged his
passenger side front tire.     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.           Plaintiff filed this complaint
seeking to recover damages in the amount of $219.77, the cost of a
replacement tire and reimbursement of the filing fee. The $25.00 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 and Allega had
no knowledge that any type of road hazard existed. The attached work
zone review reports document NO potholes were found on April 25, 2011.”
Carbone explained that “sometime during the late night due to the heavy
rain (see attached weather reports) the potholes occurred.” Carbone
reiterated the DOT position that neither DOT nor Allega had any
knowledge of the potholes prior to the morning of April 26, 2011. Carbone
denied that the defect plaintiff’s car struck was caused by any direct act of
Allega personnel.
        {¶6}   Plaintiff filed a response asserting that the roadway was so
deteriorated that “repair of the pothole after occurrence is not adequate to
ensure the safety of Ohio’s driving public.” Plaintiff contended Allega was
negligent in inspecting and in maintaining the roadway in the construction
zone.
        {¶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 DOT 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 DOT 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.
        {¶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




STEVEN SCHMIDT


      Plaintiff


      v.


OHIO DEPARTMENT OF TRANSPORTATION


      Defendant


Case No. 2011-06994-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:


Steven Schmidt                                Jerry Wray, Director
1596 Queens Court                             Department               of
Transportation
Painesville, Ohio 44077                       1980 West Broad Street
                                              Columbus, Ohio 43223
SJM/laa
8/18
Filed 8/24/11
Sent to S.C. reporter 1/19/12
