[Cite as Rybarczyk v. Ohio Dept. of Transp., 2011-Ohio-1858.]

                                                        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 RYBARCZYK, et al.

       Plaintiffs

       v.

OHIO DEPARTMENT OF TRANSPORTATION, et al.

       Defendants
       Case No. 2009-06354

Judge Alan C. Travis

DECISION




        {¶ 1} Plaintiff brought this action in negligence1 against the Ohio Department of
Transportation (ODOT), for injuries suffered when his motorcycle crashed on State
Route 800 (SR 800) in Monroe County. The incident occurred on May 29, 2008.
        {¶ 2} Plaintiff and three friends, members of the police department of the city of
Cleveland, Ohio, were on a motorcycle ride from Cleveland to Marietta, Ohio. The trip
took the riders along SR 800 in Monroe County. SR 800 is a two-lane, asphalt highway
maintained by ODOT.
        {¶ 3} On the morning of May 29, 2008, ODOT assigned a road-patching crew to
repair potholes on SR 800.             The parties stipulated that the potholes were patched
around 8:00 a.m. at or near where plaintiff was injured.                     ODOT employee, Terrill
Wickham, testified to the process of patching potholes. First, debris is removed from



1
 The complaint included a claim of loss of consortium brought by Iris Rybarczyk, plaintiff’s spouse.
Plaintiff’s spouse did not testify at trial and no other testimony was presented in support of the claim. To
the pothole. The hole is then filled with a heated patching material made up of gravel
and asphalt. The patch is smoothed out with a shovel and then compacted by driving a
pickup truck over the newly filled hole.            Finally, the crew scrapes off and removes
excess patching material.
        {¶ 4} Plaintiff and his friends were riding in single file and within the posted 55
miles per hour (mph) speed limit.            They slowed to approximately 35 mph as they
approached a curve. As they entered the curve, they encountered a quantity of gravel
on the surface of the highway. John Kraynik testified that there was no warning; that
the gravel came into sight as he came around the curve. In essence, when he saw the
gravel, he was in the midst of it. The gravel made a considerable amount of noise as it
hit his fenders.       Kraynik saw plaintiff encounter the gravel, lose control of his
motorcycle, slide and spin, and then crash in a ditch at the side of the road. The gravel
they encountered was the same color as the aggregate in the pothole-patching material
and appeared to come from the pothole patches.
        {¶ 5} James Muhic was leading the group of riders. When he came upon the
gravel, he was immediately concerned, knowing that gravel on a roadway is a safety
hazard. Muhic likened it to riding on marbles. Muhic said it was obvious that the loose
stone came from the newly patched potholes on the highway.
        {¶ 6} Plaintiff had over 30 years experience riding motorcycles. He was familiar
with and comfortable with his motorcycle. As he began to enter the curve, plaintiff
suddenly came upon gravel strewn on the road surface. He felt the front wheel lose
traction and then the rear of the motorcycle slid out from under him and he crashed. His
injuries included a broken ankle. Plaintiff said there was no doubt that the gravel that
caused his crash was from the pothole patches.
        {¶ 7} Darin Landefeld was part of the crew that had been sent to patch the
potholes on the curve where plaintiff crashed. Landefeld reviewed photographs of the
scene that were taken while plaintiff was being attended to by emergency medical
personnel. He stated that it was possible that some of the patching material had not
adhered to the surface of the road and that the patch had deteriorated.                               He
acknowledged that the photos showed that some material was coming loose from the


the extent that a claim of loss of consortium remains pending, judgment is rendered in favor of defendant.
repair. Terrill Wicham, also with ODOT, examined the photographs of the scene and he
agreed that the material shown in the photos should not have been strewn over the
roadway.
        {¶ 8} In order for plaintiff to prevail upon his claim of negligence, they must
prove by a preponderance of the evidence that defendant owed them a duty, that
defendant’s acts or omissions resulted in a breach of that duty, and that the breach
proximately caused his injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d
79, 81, 2003-Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio
St.3d 75, 77.
        {¶ 9} 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. Its duty is set forth in multiple provisions of the Ohio Revised
Code. In re Estate of Marlee Grace Morgan v. Ohio Dept. of Transp. Franklin App. Nos.
09AP-362 and 09AP-382, 2010-Ohio-5969. However, defendant is not an insurer of the
safety of its highways.          See Kniskern v. Township of Somerford (1996), 112 Ohio
App.3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App.3d 723.
        {¶ 10} A road-repair or pothole-patch that deteriorates in less than ten days is
generally considered to be prima facie evidence of negligence. See Best v. Ohio Dept.
of Transp., Ct. of Cl. No. 2010-05820-AD, 2010-Ohio-6334, ¶14.            In this case, a
preponderance of the evidence demonstrates that the repairs made by ODOT
employees on the morning of May 29, 2008, were either improperly performed or had
failed by 1:45 p.m. on the same day. Landefeld conceded that photographs of the
scene probably show that some of the patching material had come loose from the patch
applied that morning. The photographs taken at the time of the accident show black,
asphalt-coated aggregate strewn over the roadway. The uncontroverted testimony of
plaintiff and plaintiff’s witnesses was that they encountered this dangerous condition as
they drove into the curve on SR 800 and that the deteriorated patching material caused
plaintiff to lose control of his motorcycle and crash.
        {¶ 11} Accordingly, the court finds that plaintiff has proven by a preponderance of
the evidence that defendants breached their duty to properly maintain SR 800, resulting


Accordingly, Michael Rybarczyk is the sole plaintiff in this claim.
in damages to plaintiff. Judgment shall therefore be entered in favor of plaintiff on his
claim of negligence.




                                                 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 RYBARCZYK, et al.

      Plaintiffs

      v.

OHIO DEPARTMENT OF TRANSPORTATION, et al.

      Defendants
      Case No. 2009-06354

Judge Alan C. Travis

JUDGMENT ENTRY




       This case was tried to the court on the issue of liability.          The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of plaintiff on his claim of negligence. The case
will be set for trial on the issue of damages.
       Judgment is rendered in favor of defendants on Iris Rybarczyk’s claim of loss of
consortium.



                                           _____________________________________
                                           ALAN C. TRAVIS
                                           Judge
cc:


Brian M. Kneafsey, Jr.                                 Jeffrey A. Leikin
Jennifer A. Adair                                      1370 Ontario Street, Suite 100
Paula Luna Paoletti                                    Cleveland, Ohio 44113
William C. Becker
Assistant Attorneys General
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

ACT/cmd
Filed March 31, 2011/To S.C. reporter April 12, 2011
