[Cite as Stoetzer v. Ohio Dept. of Transp., 2010-Ohio-6650.]

                                       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




GARY STOETZER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-07156-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Gary Stoetzer, filed this action against defendant, Department of
Transportation (ODOT), contending his 2009 Chevrolet Malibu was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition in a roadway construction area on Interstate 75 North in Warren County. In
his complaint, plaintiff noted he was traveling “[b]etween milemarker 30 & 31" on
Interstate 75 when his car struck a pothole in the center lane damaging the right front
wheel on the vehicle. Plaintiff recalled the stated property damage event occurred on
April 26, 2010 at approximately 5:45 p.m. Plaintiff submitted a photograph depicting the
pothole his vehicle struck pointing out that the roadway surface shown “has been
repaired numerous times.” Plaintiff expressed the opinion that the repairs initiated were
done “very poorly.” The trier of fact finds the roadway area depicted in the submitted
photograph shows a surface where vast multiple patching attempts had been previously
conducted. Plaintiff requested damages in the amount of $296.39, the total stated cost
of a replacement wheel.              The $25.00 filing fee was paid and plaintiff requested
reimbursement of that cost along with his damage claim.
       {¶ 2} Defendant acknowledged the roadway area where plaintiff’s incident
occurred was within the limits of a working construction project under the control of
ODOT contractor, John R. Jurgensen Company (Jurgensen). Defendant explained the
particular construction project “dealt with widening of I-75 between Cincinnati-Dayton
Road and SR 122 in Butler and Warren Counties.”             According to defendant, the
construction project limits “corresponds to state mileposts 21.0 to 32.0” on Interstate 75
and plaintiff’s damage incident occurred between state mileposts 31.0 and 32.0, a
location within the construction area limits.    Defendant asserted that this particular
construction project was under the control of Jurgensen and consequently ODOT had
no responsibility for any damage or mishap on the roadway within the construction
project limits.   Defendant argued that Jurgensen, by contractual agreement, was
responsible for maintaining the roadway within the construction zone. Therefore, ODOT
contended that Jurgensen 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. Also evidence has been submitted to establish that
ODOT personnel were present on site conducting inspection activities.
       {¶ 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. 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 had 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 that neither ODOT nor Jurgensen “had
notice of a pothole on I-75 prior to plaintiff’s incident.” Defendant pointed out that ODOT
records “indicate that no calls or complaints were received regarding a pothole prior to
Plaintiff Stoetzer’s incident.” Defendant advised, “[i]t should be noted that this portion of
I-75 has an average daily traffic volume between 73,320 and 93,130, however, no other
complaints were received (regarding a roadway defect) 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
Jurgensen. Defendant denied receiving any complaints before April 26, 2010 regarding
a pothole on Interstate 75 between milepost 30.0 and 31.0.
       {¶ 6} Defendant submitted a letter from Jurgensen Project Manager, Kate
Holden, who recorded Jurgensen was notified of the pothole plaintiff’s vehicle struck by
the Ohio State Highway Patrol (OSP) at approximately 8:05 p.m. on April 26, 2010.
According to Holden, the Jurgensen Work Traffic Supervisor, upon receiving notice of
the pothole from OSP, “made the repair immediately.” Holden specifically denied any
Jurgensen personnel received any notice of the particular pothole prior to 8:00 p.m. on
April 26, 2010. With her letter, Holden attached copies of her daily journal notes for late
April 2010 referencing Jurgensen work activity on the project.          The first notation
regarding a pothole appears on the April 26, 2010 journal notes. Holden wrote the
following: “Jason Mudd called 805 p OSP called him we have a pothole NB center.”
      {¶ 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
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.
      {¶ 8} 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.
       {¶ 9} 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 defendant 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.
       {¶ 10} “[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, 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.
      {¶ 11} 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.
      {¶ 12} 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
had constructive notice of the pothole.
      {¶ 13} Plaintiff may establish liability on the part of defendant by providing
evidence of negligence maintenance. Weitzman v. Ohio Dept. of Transp., Ct. of Cl. No.
2008-07942-AD, jud. aff. (4-8-09), 2008-Ohio-7129. There is demonstrative evidence in
the present claim that the pothole plaintiff’s car struck had been previously patched.
However, there is no record referencing the last time the particular pothole was patched
prior to April 26, 2010 or the number of times the pothole was patched before that date.
A pothole patch that deteriorates in less than ten days is prima facie evidence of
negligent maintenance. See Matala v. Ohio Department of Transportation, Ct. of Cl.
No. 2003-01270-AD, 2003-Ohio-2618. However, a pothole patch which may or may not
have deteriorated over a longer time frame does not constitute, in and of itself,
conclusive evidence of negligent maintenance. See Edwards v. Ohio Department of
Transportation, District 8, Ct. of Cl. No. 2006-01343-AD, jud, 2006-Ohio-7173. Plaintiff
has failed to prove when the pothole that damaged his car had been previously patched
or that the patching material was subject to rapid deterioration. Plaintiff has not proven
negligent maintenance by providing evidence of multiple repairs.        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




GARY STOETZER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-07156-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:

Gary Stoetzer                  Jolene M. Molitoris, Director
2885 Westminster Way           Department of Transportation
Springboro, Ohio 45066         1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
10/1
Filed 10/15/10
Sent to S.C. reporter 2/2/11
