[Cite as Panaro v. Ohio Dept. of Transp., Dist. 8, 2009-Ohio-7192.]

                                       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




GEORGIA PANARO

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

        Defendant

        Case No. 2009-07059-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On July 23, 2009, at approximately 5:00 p.m. (see complaint), plaintiff,
Georgia Panaro, was traveling “north on I-75 a few hundred yards before exit 38" when
her 2008 Volkswagen Passat struck a large pothole causing tire and rim damage to the
vehicle.     Plaintiff asserted that the damage to her car was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in
maintaining Interstate 75 in Warren County. Plaintiff recalled she spoke with ODOT
employee Russ Schubert and he informed her that the particular pothole had been
discovered on July 22, 2009 and reported on that same day. Plaintiff filed this complaint
seeking to recover $678.23, the total stated cost of replacement parts she purchased to
have her car repaired. 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 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 at “around milepost 37.90 which is within the project limits.”
Defendant asserted 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.
       {¶ 3} 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 particular construction work.       See Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
       {¶ 4} Alternatively, defendant denied that neither ODOT nor Jurgensen had any
notice of roadway defects around milepost 37.90 on Interstate 75 prior to plaintiff’s July
23, 2009 property damage occurrence. Defendant pointed out that ODOT records show
no calls or complaints were received regarding any defects at or near milepost 37.90
prior to July 23, 2009. Defendant contended that plaintiff failed to offer any evidence to
establish her property damage was attributable to any conduct on the part of either
ODOT or Jurgensen.
      {¶ 5} Defendant submitted a written statement from Jurgensen Project
Manager, Jason M. Mudd, in reference to work performed on Interstate 75 during the
time frame of plaintiff’s incident. Mudd noted he was given a handwritten statement
(copy submitted) from an ODOT inspector regarding a pothole at milepost 38.0 on
Interstate 75 North. This notification from ODOT was received on July 22, 2009, the
day before plaintiff’s damage occurrence.       Mudd pointed out he in turn notified
Jurgensen foreman, Ken Bolser, concerning the pothole at milepost 38.0. A Jurgensen
Time sheet (copy submitted) for July 23, 2009 compiled by Ken Bolser indicates work
activity for that date included patching potholes. According to the information on the
time sheet, work by Jurgensen personnel began at 7:00 a.m. on July 23, 2009 and
closed at approximately 6:00 p.m. There is no designation regarding what approximate
time potholes were filled on July 23, 2009.
      {¶ 6} Plaintiff filed a response expressing her disagreement with defendant’s
assertion that neither ODOT nor Jurgensen had notice of the pothole prior to her
incident. Plaintiff again related she spoke to ODOT employee, Russell Schubert, about
the pothole and was informed by him that ODOT was aware of the pothole. Plaintiff
submitted a copy of an ODOT generated e-mail dated July 22, 2009 at 10:37 a.m. which
establishes ODOT had actual notice of a pothole near milepost 38.0 on Interstate 75
North. In her response, plaintiff recalled her car struck this pothole at approximately
3:00 p.m. on July 23, 2009. Plaintiff maintained she listed the time of her damage
occurrence on her complaint as July 23, 2009 at 3:00 p.m. A review of her complaint
lists in handwriting the date and time of the incident at 5:00 p.m. on July 23, 2009. The
complaint also contains a witness statement from a passenger in plaintiff’s car, Tommy
Helms, who witnessed the property damage event. Helms noted the damage incident
occurred on “the afternoon of 7-23-09.” Helms did not provide a more precise time of
the occurrence in his statement.
       {¶ 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} 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.
       {¶ 9} 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 produced evidence to prove actual notice of the
particular damage-causing pothole was received more than twenty-eight hours prior to
the incident forming the basis of this claim. Actual notice exists where from competent
evidence, the trier of fact can conclude, the pertinent information was personally
communicated to, or received by, the party. In re Fahle’s Estate (1950), 90 Ohio App.
195, 197, 47 O.O. 231, 105 N.E. 2d 429. As applicable here, actual notice means
express or direct information. Fahle at 198. Such evidence exists in the instant claim.
Consequently, under the rationale of Denis, in regard to actual notice, defendant is
liable to plaintiff for the damages incurred, plus the $25.00 filing fee, which may be
reimbursed as compensable 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




GEORGIA PANARO

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

      Defendant

      Case No. 2009-07059-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 $703.23, which includes the filing fee. Court costs are
assessed against defendant.




                                        DANIEL R. BORCHERT
                                        Deputy Clerk
Entry cc:

Georgia Panaro                  Jolene M. Molitoris, Director
20582 Edelweiss                 Department of Transportation
Lawrenceburg, Indiana 47025     1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
12/1
Filed 12/23/09
Sent to S.C. reporter 4/16/10
