[Cite as Hassay v. Ohio Dept. of Transp., 2011-Ohio-6996.]



                                      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




DARLENE HASSAY

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2011-08237-AD

Deputy Clerk Daniel R. Borchert

                                     MEMORANDUM DECISION

        {¶1}    On April 18, 2011, at approximately 7:15 a.m., plaintiff, Darlene Hassay,
was traveling north on State Route 11 when she struck a deep pothole and damaged
her car. Plaintiff asserted that the damage to her automobile was proximately caused
by negligence on the part of defendant, Department of Transportation (DOT), in
maintaining a hazardous roadway condition on SR 11 in a construction area. Plaintiff
filed this complaint seeking to recover damages in the amount of $460.30, the cost of
two replacement rims and associated automobile repairs. The filing fee was paid.
        {¶2}    Defendant acknowledged that the roadway area where plaintiff’s property
damage incident occurred was located within the limits of a working construction project
under the control of DOT contractor, Marucci & Gaffney Excavating Co. (M&G).
Defendant explained that the construction project “dealt with resurfacing with asphalt
concrete, guardrail upgrading, replacing highway signing and rehabilitating numerous
bridges using a design build contract.” Defendant located plaintiff’s incident at milepost
9.28 on SR 11 in Trumbull County, which is within the project limits.              Defendant
asserted that this particular construction project was under the control of M&G and
consequently, DOT had no responsibility for any damage or mishap on the roadway
within the construction project limits.   Defendant argued that M&G, by contractual
agreement, was responsible for maintaining the roadway within the construction zone.
Therefore, DOT reasoned that M&G 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 her damage was
proximately caused by roadway conditions created by DOT or its contractors.            All
construction work was to be performed in accordance with DOT requirements and
specifications and subject to DOT approval. Also, DOT personnel maintained an onsite
inspection presence throughout the construction project limits.
      {¶3}   For plaintiff to prevail on a claim of negligence, she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her 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 she 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 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 DOT to maintain the roadway in a safe
drivable condition is not delegable to 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 DOT 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 Express, Inc. v. Ohio Dept. of Transp. (June 28,
2001), Franklin App. 00AP-1119.
      {¶5}   Defendant denied that either DOT or M&G had any knowledge of the
particular damage-causing roadway defect plaintiff’s car struck. Defendant contended
plaintiff failed to offer any evidence of negligent roadway maintenance on the part of
DOT. Defendant submitted an email from M&G representative, William Gaffney Jr.,
who maintained that M&G did not receive any complaints of a pothole prior to plaintiff’s
incident and that plaintiff failed to present any evidence to M&G to substantiate her
claim of property damage. Gaffney stated that project records for April 15 and April 18,
2011, “do not indicate that [M&G] personnel were notified by ODOT or any individual
traversing the Highway that a pothole existed within the public driving lanes of the
project at the location identified by the Plaintiff.” Gaffney reiterated the DOT position
that neither DOT nor M&G had any knowledge of the pothole prior to the morning of
April 18, 2011. Gaffney denied that the defect plaintiff’s car struck was caused by any
direct act of M&G personnel.
      {¶6}   Plaintiff did not file a response.
      {¶7}   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 DOT
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 unreasonable risk of harm
is the precise duty owed by DOT to the traveling public both under normal traffic
conditions 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.
      {¶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.
       {¶9}   In this case, upon review, insufficient evidence has been produced to infer
that the roadway was negligently maintained. Denis. Plaintiff asserts that the pothole
has been patched several times since her damage event occurred. A patch that
deteriorates in less than ten days is prima facie evidence of negligent maintenance.
See Matala v. Ohio Department of Transportation, 2003-01270-AD, 2003-Ohio-
2618;Schrock v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-02460-AD, 2005-Ohio-2479.
However, plaintiff did not establish that the pothole she struck had been previously
patched or that the patching material was subject to rapid deterioration. Plaintiff has not
proven the damage to her car was the result of negligent maintenance despite her
assertions that multiple repairs were performed after her incident occurred. 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 her 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




DARLENE HASSAY

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2011-08237-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:

Darlene Hassay                                    Jerry Wray, Director
1024 Illinois Avenue                              Department of Transportation
McDonald, Ohio 44437                              1980 West Broad Street
                                                  Columbus, Ohio 43223
10/3
Filed 10/7/11
Sent to S.C. reporter 2/16/12
