[Cite as Batten v. Ohio Dept. of Transp., 2011-Ohio-5533.]



                                       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




GERALD BATTEN,                                               Case No. 2011-03596-AD

       Plaintiff,

       v.                                                    Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

       Defendant.                                            MEMORANDUM DECISION


        {¶ 1} On January 24, 2011, at approximately 12:00 p.m., plaintiff, Gerald Batten,

was traveling south on Interstate 75 “south of mile marker 52.8 where contractor Ruhlin

Company is working” when he “hit a very large pothole.” Plaintiff asserted the impact

“broke the steel cords in passenger front tire and bent both factory alloy wheels on

passenger side of my car.” Plaintiff implied that the damage to the automobile was

proximately caused by negligence on the part of defendant, Department of

Transportation (DOT), in failing to maintain the roadway free of hazardous conditions.

Plaintiff filed this complaint seeking to recover $1,609.63, which represents a

replacement tire and wheels as well as related repair expenses. The filing fee was paid.

        {¶ 2} Defendant explained that the roadway area where plaintiff’s incident

occurred was within the limits of a working construction project under the control of

ODOT contractor, The Ruhlin Company (Ruhlin). Defendant related that the particular

construction project “dealt with grading, draining, paving with asphalt concrete and

repair several structures in Montgomery County on I-75 between state mileposts 52.00
to 53.18.” Plaintiff’s damage incident occurred within the project limits.

       {¶ 3} Defendant asserted that this particular construction project was under the

control of Ruhlin and consequently ODOT had no responsibility for any damage or

mishap on the roadway within the construction project limits. Defendant argued that

Ruhlin, by contractual agreement, was responsible for maintaining the roadway within

the construction zone. Therefore, ODOT contended that Ruhlin 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 his damage was proximately caused by roadway conditions created by ODOT or

its contractors. All construction work was to be performed in accordance with ODOT

requirements and specifications and subject to ODOT approval.

       {¶ 4} 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.

      {¶ 5} 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.

      {¶ 6} Alternatively, defendant denied that either ODOT or Ruhlin had any notice

“of the pothole on I-75 prior to plaintiff’s incident.”    Defendant pointed out   ODOT

records “indicate that there were no complaints for potholes on I-75.” Defendant argued

that plaintiff failed to produce any evidence to prove the damage-causing pothole was

attributable to any conduct on either the part of ODOT or Ruhlin. Defendant submitted

documents which indicate Ruhlin was making pothole repairs on January 24, 2011, on I-

75.

      {¶ 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

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

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.

      {¶ 8} Ordinarily 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.      However, proof of notice of a dangerous condition is not

necessary when defendant’s own agents actively cause such condition. Bello v. City of

Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the syllabus;

Sexton v. Ohio Department of Transportation (1996), 94-13861. There is no evidence

to show that any construction activity caused the pothole.

      {¶ 9} Generally, in order to recover in any suit involving injury 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. Plaintiff has not produced any evidence to indicate the length of
time that the pothole was present on the roadway prior to the incident forming the basis

of this claim. No evidence has been submitted to show that defendant had actual notice

of the pothole. Additionally, the trier of fact is precluded from making an inference of

defendant’s constructive notice, unless evidence is presented in respect to the time that

the pothole appeared on the roadway. Spires v. Ohio Highway Department (1988), 61

Ohio Misc. 2d 262, 577 N.E. 2d 458.        There is no indication that defendant had

constructive notice of the pothole.

       {¶ 10} Despite the arguments raised in his response, 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 Stoetzer v. Ohio Dept. of Transp., Ct. of Cl. No. 2010-07156-AD,

2010-Ohio-6650; Gaskins v. Dept. of Transp., Ct. of Cl. No. 2010-04904-AD, 2010-

Ohio-6552.
                                 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




GERALD BATTEN,                                         Case No. 2011-03596-AD

        Plaintiff,

        v.                                             Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

        Defendant.                                     ENTRY OF ADMINISTRATIVE
                                                       DETERMINATION


        {¶ 11} 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
                                                Acting Clerk

Entry cc:

Gerald Batten                                   Jerry Wray, Director
7-105 Wilson Street W.                          Department of Transportation
Ancaster ON. Canada L9G1N4                      1980 West Broad Street
                                                Columbus, Ohio 43223




6/17
Filed 7/19/11
Sent to S.C. reporter 10/27/11
