[Cite as Suhy v. Ohio Dept. of Transp., 2011-Ohio-1114.]

                                      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




WALTER R. SUHY

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-08896-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Walter R. Suhy, filed this action against defendant, Department of
Transportation (ODOT), contending his Buick Lucerne was damaged as a proximate
cause of negligence on the part of ODOT in maintaining a hazardous condition on State
Route 193 in Mahoning County. Specifically, plaintiff asserted the left rim on his car
was damaged when the vehicle struck a pothole on the exit ramp for Martin Luther King
Blvd. (US Route 422) from State Route 193. Plaintiff recalled his property damage
event occurred on Sunday, June 6, 2010 at approximately 1:30 p.m. In his complaint,
plaintiff requested damages in the amount of $401.16, the cost of replacement parts
and related repair expenses he incurred. The filing fee was paid.
        {¶ 2} Defendant explained plaintiff’s property damage event occurred within the
limits of a working roadway construction project under the control of ODOT contractor,
A.P. O’Horo Company (O’Horo). Defendant related the particular construction project
“dealt with grading, draining, resurfacing with asphalt concrete and by replacing the
concrete deck on two structures between mileposts 0.42 to 1.42 of SR 193 in Mahoning
County.” Defendant pointed out that from “[p]laintiff’s description of his incident places
him around milepost 0.99 which is within the project limits.” Defendant argued this
section of roadway was under the control of O’Horo and consequently ODOT had no
responsibility for any damage or mishaps on the roadway within the construction project
limits. Defendant asserted that O’Horo, by contractual agreement, was responsible for
maintaining the roadway in the construction area, although all work performed was
subject to ODOT requirements and specifications. 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
roadway section.      Evidence has shown ODOT maintained an onsite inspection
presence within the limits of the 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
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
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 neither ODOT nor O’Horo had any “notice
of the pothole on SR 193 prior to plaintiff’s incident.” Defendant pointed out that ODOT
“records indicate that no calls or complaints were received regarding the pothole in
question” at milepost 0.99 prior to plaintiff’s property damage event.        Defendant
advised, “[i]t should be noted that this portion of SR 193 has an average daily traffic
volume of 22,000, however, no other complaints were received 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 O’Horo.
Defendant submitted documentation establishing no O’Horo personnel were working on
the day of plaintiff’s incident, Sunday, June 6, 2010.     Plaintiff did not submit any
evidence to show the length of time the particular damage-causing pothole existed on
the roadway prior to 1:30 p.m. on June 6, 2010.
       {¶ 6} 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
both under 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.
       {¶ 7} 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.
      {¶ 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. There is no evidence that either defendant or O’Horo had actual
notice of the pothole condition. Therefore, in order to recover plaintiff must produce
evidence to prove constructive notice of the defect or negligent maintenance.
      {¶ 9} “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice of 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.   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.
      {¶ 10} 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. Size of the defect 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. No evidence has shown ODOT or
O’Horo had constructive notice of the pothole.
      {¶ 11} 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




WALTER R. SUHY

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-08896-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:

Walter R. Suhy                                  Jolene M. Molitoris, Director
49272 Eagle Drive                               Department of Transportation
East Liverpool, Ohio 43920     1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
12/15
Filed 1/11/11
Sent to S.C. reporter 3/4/11
