[Cite as Hawk v. Ohio Dept. of Transp., 2015-Ohio-4942.]



JAMES P. HAWK                                         Case No. 2015-00377-AD

       Plaintiff                                      Clerk Mark H. Reed

       v.
                                                      MEMORANDUM DECISION
OHIO DEPARTMENT OF
TRANSPORTATION

       Defendant



        {¶1} Plaintiff James P. Hawk filed this claim on April 20, 2015 to recover
damages which occurred when his 2006 Lincoln Zephyr struck a large pothole while
traveling on I-75 between exit 167 and 168 in Wood County, Ohio. This road is a public
road maintained by the Ohio Department of Transportation. Plaintiff’s vehicle sustained
damages in the amount of $272.76. Plaintiff maintains a collision insurance deductible
of $500.00.
        {¶2} The evidence in this case reveals that the area where plaintiff had his
accident was a construction zone. The department had contracted with Miller Brothers
Construction, Inc. to do certain construction work on this section of IR 75 between mile
markers 167 and 168 in Wood County.
        {¶3} In a complaint presented to the Court regarding damage to motor vehicles
traveling on a state highway in a construction zone, the Court may only pass judgment
on whether the plaintiff has shown that the department breached its duty to the public in
managing the contractor and ensuring the safety of the public within the construction
zone. The department could be found negligent in this type of case only if it failed to
properly manage the contractor by reasonably inspecting the construction site and the
work performance of the contractor, or if the agency knew or should have known about
the pothole in question and failed to repair or to require the contractor to repair the road
hazard.
Case No. 2015-00377-AD                     -2-               MEMORANDUM DECISION




      {¶4} In the Investigation Report filed July 24, 2015, the defendant stated that they
had received no reports of any pothole within the construction work zone, immediately
prior to plaintiff’s accident (ODOT did receive a complaint on the same day, several
hours after plaintiff had his accident). The contractor Miller Brothers Construction, Inc.
also reports receiving no notice of any potholes in the area. Thus, the Court is unable
to find that the agency knew about this pothole.      Further, a review of the Exhibits
submitted by ODOT as part of its Investigation Report does not reveal a sufficient
pattern of pothole formation or other roadway hazard creation in this construction zone
that would have placed the Department or the contractor on notice that this area of the
roadway was more likely to have potholes than other similar sections of roadway.
      {¶5} As we consider whether ODOT breached its duty to the public in keeping the
construction area safe, the Court must take into account that this was an active
construction zone. Ohio law is clear that ODOT cannot guarantee the same level of
safety during a highway construction project as it can under normal traffic conditions.
Feichtner v. Ohio Dept. of Transp.(1995), 114 Ohio App. 3d346, 354; Roadway
Express, Inc. The test is whether, under the totality of the circumstances, "ODOT acted
sufficiently to render the highway reasonably safe for the traveling public during the
construction project." Basilone v. Ohio Dept. of Transp. (Feb. 13, 2001), Hamilton App.
No. 00AP-811, citing Feichtner, and Lumbermens Mut. Cas. Co. v. Ohio Dept. of
Transp. (1988), 49 Ohio App.3d. 129.
      {¶6} In this case, there is nothing in the record that would allow the Court to find
that the department did not act appropriately to manage the contractor and keep the
construction area safe. The plaintiff did not offer any evidence to counter what was in
the defendant’s report regarding this element.
      {¶7} Since the plaintiff is unable to prove that the defendant knew or should have
known about this dangerous condition, the claim must fail.
Case No. 2015-00377-AD                     -3-              MEMORANDUM DECISION




JAMES P. HAWK                               Case No. 2015-00377-AD

      Plaintiff                             Clerk Mark H. Reed

      v.
                                            ENTRY OF ADMINISTRATIVE
OHIO DEPARTMENT OF                          DETERMINATION
TRANSPORTATION

      Defendant

      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.




                                             MARK H. REED
                                             Clerk

Entry cc:


James P. Hawk                               Jerry Wray, Director
7890 Bechtol Road                           Ohio Department Of Transportation
Lima, Ohio 45801                            1980 West Broad Street
                                            Mail Stop 1500
                                            Columbus, Ohio 43223
Case No. 2015-00377-AD           -4-   MEMORANDUM DECISION




Filed 9/10/15
Sent to S.C. Reporter 11/30/15
