[Cite as Gavran v. Ohio Dept. of Transp., 2010-Ohio-6649.]

                                      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




BRUNO GAVRAN

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2010-07032-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Bruno Gavran, filed this action against defendant, Department of
Transportation (ODOT), contending his 2004 Nissan Xterra was damaged as a
proximate cause of negligence on the part of ODOT in maintaining hazardous
conditions in a roadway construction area on State Route 2 in Lake County.
Specifically, plaintiff noted the rear drive shaft, rear stabilizer links, and right lower
control arm of his vehicle were damaged as a result of “hitting multiple pot holes (and) a
chunk of raised asphalt” on State Route 2 “between Rt. 640 to 91 West Exit.” Plaintiff
recalled the described damage incident occurred on April 6, 2010 at approximately 6:30
a.m. In his complaint, plaintiff recorded, “I took my vehicle to the dealership where they
advised me the construction zone caused all this damage to my car.” Plaintiff requested
damages in the amount of $1,535.88, the stated cost of replacement parts and related
repair expense. The filing fee was paid.
        {¶ 2} Defendant acknowledged that the area where plaintiff’s stated property
damage event occurred was located within the limits of a working construction project
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under the control of ODOT contractor, Anthony Allega Cement Contractor/Great Lakes
Construction (Allega). Defendant explained this particular 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
retaining walls, MSE walls and rehabilitating existing structures between mileposts 3.32
to 7.75 (on State Route 2) in Lake County.” Defendant asserted Allega, by contractual
agreement, was responsible for roadway damage, occurrences, or mishaps within the
construction zone. Therefore, ODOT argued Allega is the proper party defendant in this
action. Defendant implied 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. All work by the contractor
was to be performed in accordance with ODOT mandated specifications and
requirements and subject to ODOT approval. Furthermore, defendant maintained an
onsite personnel presence in the construction project area.
      {¶ 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
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Case No. 2006-03532-AD                  -3-              MEMORANDUM DECISION



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.
      {¶ 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 construction site and correct any
known deficiencies in connection with particular construction work.     See Roadway
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Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
       {¶ 5} Alternatively, defendant argued that neither ODOT nor Allega had any
knowledge “of the pothole on SR 2 prior to plaintiff’s incident.” Defendant related the
ODOT Lake County Garage did not receive any calls or complaints regarding any
potholes on State Route 2 at the location provided by plaintiff, between State Route 640
and State Route 91 exit. Defendant asserted “that SR 2 was in good condition at the
time and in the general vicinity of plaintiff’s incident.” Defendant contended that plaintiff
failed to produce evidence establishing his property damage was attributable to either
conduct on the part of ODOT or Allega.
       {¶ 6} Defendant submitted a letter from Allega representative, Carmen C.
Carbone, regarding his knowledge of roadway conditions on State Route 2 at the time
and location of plaintiff’s incident. Carbone reported that the potholes on State Route 2
that plaintiff’s 2004 Nisan Xterra struck “were not a result of any actions taken by”
Allega. Carbone submitted photographs depicting roadway conditions within the project
limits at the time of the incident and observed the photographs “illustrate the conditions
of the roadway and bridge” on State Route 2.           Carbone noted, “[t]he pre-existing
roadway deterioration and preceding conditions are not the responsibility of Allega.”
Carbone submitted documentation showing Allega personnel, at the direction of ODOT,
patched potholes on State Route 2 on nine occasions during the first three months of
2010; the last time patching operations were conducted prior to plaintiff’s incident was
March 9, 2010. Carbone recalled, all “patching inspected and accepted by ODOT.”
Additionally, Carbone provided documentation regarding two instances of owners of the
2005 Nissan Xterra experiencing problems with the drive shaft falling off.
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      {¶ 7} Plaintiff filed a response expressing his opinion that the documentation
provided regarding drive shaft problems on the 2005 Nissan Xterra was fraudulently
produced. Furthermore, plaintiff maintained that the photographs submitted depicting
roadway conditions on State Route 2 West were not accurate representations of actual
roadway conditions.   Plaintiff also asserted that the potholes and other defect his
vehicle struck on April 6, 2010 were still present on the roadway as of August 2010.
Plaintiff insisted all damage to his 2004 Nissan Xterra was caused by unrepaired
roadway defects on State Route 2 West on April 6, 2010. Plaintiff provided photographs
depicting roadway conditions on State Route 2. The trier of fact, after reviewing all
photographs submitted depicting State Route 2 West, finds that the roadway conditions
shown exhibit some existing deterioration and multiple pothole patches. The roadway
depicted appears rough, but drivable.
      {¶ 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
Case No. 2006-03532-AD                   -6-                MEMORANDUM DECISION



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} 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, 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 no evidence ODOT or Allega had actual notice of the potholes or other defects
prior to plaintiff’s incident at 6:30 a.m. on April 6, 2010. 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, 47 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.”
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Case No. 2006-03532-AD                   -7-               MEMORANDUM DECISION



Bussard at 4.
      {¶ 12} Generally, 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. To find constructive notice of a defect, evidence must
establish that 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. “Obviously, the requisite
length of time sufficient to constitute constructive notice varies with each specific
situation.” Danko v. Ohio Dept. of Transp. (Feb. 4, 1993), Franklin App. 92AP-1183.
There is no evidence ODOT or Allega had constructive notice of any defects on State
Route 2.
      {¶ 13} Defendant may bear liability if it can be established if some act or
omission on the part of ODOT or its agents was the proximate cause of plaintiff’s injury.
This court, as the trier of fact, determines questions of proximate causation. Shinaver v.
Case No. 2006-03532-AD                   -8-               MEMORANDUM DECISION



Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477.
      {¶ 14} “If any injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of the negligence.       It is not
necessary that the defendant should have anticipated the particular injury.         It is
sufficient that his act is likely to result in an injury to someone.” Cascone v. Herb Kay
Co. (1983), 6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber
Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171
N.E. 327. Evidence available tends to point out the roadway was maintained property
under ODOT specifications.      Plaintiff failed to prove 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; Vanderson
v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-09961-AD, 2006-Ohio-7163; Shiffler v.
Ohio Dept. of Transp., Ct. of Cl. No. 2007-07183-AD, 2008-Ohio-1600.
      {¶ 15} Plaintiff has failed to produce sufficient evidence to prove that defendant
or its agents maintained known hazardous roadway conditions. See Nicastro v. Ohio
Dept. of Transp., Ct. of Cl. No. 2007-09323-AD, 2008-Ohio-4190. Evidence has shown
that the repavement project complied with ODOT specifications.         Plaintiff has not
provided evidence to prove that the roadway area was particularly defective or
hazardous to motorists. Reed v. Ohio Dept. of Transp., Dist 4, Ct. of Cl. No. 2004-
08359-AD, 2005-Ohio-615. Plaintiff has failed to provide sufficient evidence to prove
that defendant was negligent in failing to redesign or reconstruct the roadway
repavement procedure considering plaintiff’s incident appears to be the sole incident in
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Case No. 2006-03532-AD                 -9-              MEMORANDUM DECISION



this area. See Koon v. Hoskins (Nov. 2, 1993), Franklin App. No. 93AP-642; also,
Cherok v. Dept. of Transp., Ct. of Cl. No. 2006-01050-AD, 2006-Ohio-7168.




                             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




BRUNO GAVRAN

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant
Case No. 2006-03532-AD                    - 10 -             MEMORANDUM DECISION



         Case No. 2010-07032-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:

Bruno Gavran                                       Jolene M. Molitoris, Director
1190 Mohegan Trail                                 Department of Transportation
Willoughby, Ohio 44094                             1980 West Broad Street
                                                   Columbus, Ohio 43223
RDK/laa
8/30
Filed 10/25/10
Sent to S.C. reporter 2/2/11
