[Cite as Boiano v. Ohio Dept. of Transp., Dist. 8, 2010-Ohio-4791.]

                                       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




MICHAEL "TONY" BOIANO

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

        Defendant

        Case No. 2010-02880-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On January 14, 2010, at approximately 9:30 p.m., plaintiff, Michael
Boiano, was traveling north on Interstate 75 “at the SR 122 interchange at Monroe, Ohio
in a construction zone” when his 2007 Volkswagen Rabbit struck a “massive hole”
causing tire and wheel damage to the vehicle. The damage event was investigated by
a local Ohio State Highway Patrol (OSHP) unit and a “Traffic crash Report” (copy
submitted) was filed incident to the investigation. According to information in the OSHP
“Traffic Crash Report,” the pothole plaintiff’s car struck had been patched at 4:30 p.m.
on January 14, 2010, five hours prior to plaintiff’s damage occurrence. Apparently, the
patch had rapidly deteriorated over a five hour period creating a new roadway defect
which caused plaintiff’s property damage. Plaintiff contended his property damage was
proximately caused by 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 seeks damage recovery
in the amount of $1,116.22, the cost of replacement parts. related repair expenses, and
towing costs resulting from the January 14, 2010 incident.             Plaintiff also requested
reimbursement of $4.00, the cost of a copy of the OSHP “Traffic Crash Report.” This
fee request is not compensable in a claim of this type and therefore, is denied. 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 no calls or complaints were received regarding
the pothole in question prior to Plaintiff Boiano’s incident.” Defendant advised, “[i]t
should be noted that this portion of I-75 has an average daily traffic volume of 70,000,
however, and no calls were received (regarding a roadway defect) prior to plaintiff’s
alleged incident.” Defendant contended plaintiff failed to offer any evidence of 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 did not address plaintiff’s evidence that the pothole had been patched earlier in
the day on January 14, 2010, at approximately 4:30 p.m. Travis 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 report, “[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} Plaintiff filed a response insisting defendant should be held liable due to
the fact the damage-causing pothole was inadequately repaired at 4:30 p.m. on January
14, 2010 and the repair had deteriorated by 9:30 p.m., the approximate time of his
incident. Plaintiff asserted defendant either knew or should have known the pothole
patch was inadequate and subject to rapid deterioration.
      {¶ 8} 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.
      {¶ 9} 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.
       {¶ 10} 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 evidence ODOT’s contractor had actual notice of the
pothole prior to plaintiff’s incident. However, the notice time of thirty minutes before
plaintiff’s damage 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.
       {¶ 11} “[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.
       {¶ 12} 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.
       {¶ 13} 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.
       {¶ 14} 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 at 4:30 p.m. on January 14, 2010 and the repair patch had failed by 9:30 p.m.
on that same day.
       {¶ 15} The fact that the pothole plaintiff’s car struck deteriorated in a time frame
of less than five 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 $1,116.22, 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




MICHAEL “TONY” BOIANO

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8
        Defendant

         Case No. 2010-02880-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 $1,141.22, which includes the filing fee. Court costs are
assessed against defendant.




                                           DANIEL R. BORCHERT
                                           Deputy Clerk

Entry cc:

Michael “Tony” Boiano                      Jolene M. Molitoris, Director
6282 Runabay Court                         Department of Transportation
West Chester, Ohio 45069                   1980 West Broad Street
                                           Columbus, Ohio 43223
RDK/laa
5/4
Filed 6/8/10
Sent to S.C. reporter 10/1/10
