[Cite as Miller v. Ohio Dept. of Transp., 2012-Ohio-6323.]



                                                         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



DENNIS D. MILLER, Admr., etc.

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, et al.

        Defendants

Case No. 2009-07679

Judge Alan C. Travis
Magistrate Holly True Shaver

DECISION OF THE MAGISTRATE

        {¶ 1} Plaintiff brought this action against the Ohio Department of Transportation
(ODOT) alleging claims of negligence and wrongful death on behalf of himself and the
heirs of decedent, Pauline Miller.1 The issues of liability and damages were bifurcated
and the case proceeded to trial on the issue of liability.2
        {¶ 2} This case arises out of a motor vehicle collision that occurred on March 11,
2008, on State Route (SR) 165 in Columbiana County, Ohio.3 SR 165 is a rural, two-
lane highway near the border of Columbiana and Mahoning Counties. At approximately
7:18 a.m., plaintiff’s decedent, Pauline Miller, was driving her 1994 Dodge Intrepid
northbound on SR 165.              At the same time, Joseph Goscenski, Jr., a truck driver
employed by George Wm. Morgan, Jr. & Co., was driving a 1999 International 4900
straight truck southbound on SR 165. In the area near the 1.0 to 1.3 mile marker, the

        1
         Although plaintiff named both ODOT and the State of Ohio as defendants, the term “defendant”
shall be used to refer to ODOT throughout this decision.
        2
         This case was tried to the court simultaneously with Case No. 2009-09205.
        3
         All dates in March refer to the year 2008.
Case No. 2009-07679                           -2-                                  DECISION

southbound lane of SR 165 ascends a small hill. Beyond the hill, a series of large
potholes existed in the southbound lane. Goscenski asserts that the wheels of his truck
struck the potholes, which caused him to lose control of his truck. Goscenski’s truck
crossed the center line and struck Miller’s vehicle, killing her.
         {¶ 3} Plaintiff asserts that defendant was negligent in failing to repair the potholes
prior to the collision, and that defendant’s failure was the proximate cause of Miller’s
death.     Defendant denies that the truck struck the potholes.          However, defendant
contends that even if the truck did strike the potholes, defendant did not have notice of
the particular defects in the roadway and is, therefore, not liable for plaintiff’s injuries.
         {¶ 4} Dennis Miller testified that he and Pauline Miller had been married for 24
years at the time of the accident, and that they had two children, Nathan and Rachel.
         {¶ 5} Joseph Goscenski, Jr. testified that he was employed by Morgan Trucking
which is based in Freedom, Pennsylvania, near Pittsburgh. On March 11, 2008, he was
scheduled to deliver bulk mail in Cleveland by 5:00 a.m. Therefore, he began his work
day at 1:00 a.m, which was earlier than his usual start time. The truck he was driving
was known as a “straight truck,” comprised of a cab and a chassis with a 26-foot long
box trailer. The truck was equipped with single tires on the front end and “dual” tires on
each side of the rear of the trailer.
         {¶ 6} Prior to beginning his trip, Goscenski performed a pre-trip inspection of the
truck, which included checking the brakes, pulling on the slack adjusters, making sure
the warning buzzers were working, and inspecting the tires.              Goscenski found no
problems with the truck and began his route.
         {¶ 7} Goscenski completed his last delivery in Cleveland at approximately 4:30 or
4:45 a.m., and then headed back to Pittsburgh. Goscenski decided to take a faster
route on the return trip to arrive timely for an eye doctor’s appointment scheduled for
8:30 a.m. At some point on the way back to Pittsburgh, Goscenski was traveling on SR
165 southbound. The speed limit where the collision occurred was 55 miles per hour
Case No. 2009-07679                         -3-                                 DECISION

(mph). Goscenski estimated his speed at approximately 50 mph as he crested the hill.
Goscenski testified that as he started down the hill he heard a big “bang” and his truck
went left of center. Goscenski tried to steer his truck back into the southbound lane with
no success. Goscenski saw Miller’s vehicle coming directly at him and braced himself.
Goscenski’s truck struck Miller’s vehicle, then went off the roadway, over snow-covered
grass, and came to rest in a field.
       {¶ 8} Goscenski testified that he did not see the potholes until his truck struck
them, and that the potholes were on the right side of his travel lane. Goscenski added
that when his truck struck the potholes, he thought that one of his tires had “blown out”
due to the sudden, unexpected force that made him lose control of his vehicle.
Goscenski testified adamantly that his vehicle came into contact with the potholes and
that the impact caused him to lose control of his vehicle. While Goscenski admitted that
he had been in a hurry to return to Pittsburgh for his doctor’s appointment, he stated
that he had enough time to travel without being careless in the operation of his truck.
       {¶ 9} Ohio State Highway Patrol (OSHP) Trooper Timothy Jones (now retired)
testified that he was dispatched to the accident scene to conduct an investigation.
Trooper Jones testified that he interviewed Goscenski and that he took measurements
of the vehicles’ final resting points and of the potholes. The measurements taken at the
scene show that the first series of potholes measured 17.79 feet in length and the
second series of potholes measured 10.67 feet in length. Both series of potholes were
located on the right side of the southbound lane of travel. (Joint Exhibit 14.) Trooper
Jones noted the following in his narrative report: “Pavement in poor condition due to
large pot holes at the scene. Large pot hole measured and found to be 5 inches in
depth with a width of 24 inches into the southbound lane. The south end was not
gradual but abrupt and near straight down.” (Joint Exhibit 1.) Trooper Jones explained
that instead of being a gradual incline or decline, the pothole was “basically like hitting a
curb, straight down.” Trooper Jones testified that he called Barry Miner, ODOT’s local
superintendent, and that he closed the road until the potholes were repaired.
Case No. 2009-07679                         -4-                               DECISION

       {¶ 10} John Rieseck testified via deposition that on the morning of the collision,
he was driving to Youngstown for classes at ITT Technical Institute; that he saw the
ambulance and both disabled vehicles; and that he continued on to school. Rieseck
explained that he had struck the same set of potholes approximately 2 to 3 weeks prior
to the accident on his way home from school, that he felt that the potholes were “pretty
bad,” and that he called ODOT to report them. Rieseck does not recall the date that he
called ODOT, but stated that it was shortly after he had struck the potholes. Rieseck
testified that he spoke to someone at ODOT, told the individual that he wanted to report
a bad road condition, and that he reported the approximate area of the potholes. When
shown photos of the potholes taken on the date of the accident, Rieseck stated that the
potholes he had reported were in the same location on SR 165, but that the potholes
depicted in the photographs had increased in depth, width, and length. Rieseck also
disclosed that he is a friend of Nathan Miller, plaintiff’s decedent’s son.
       {¶ 11} Becky Giauque testified that at the time of the accident she was employed
by ODOT as a public information officer in District 11. Giauque stated that the public is
encouraged to report the existence of potholes to ODOT by phone, e-mail, or by filling
out a “feedback form” on ODOT’s website. With regard to phone calls, Giauque testified
that anyone who answers the phones at ODOT can take a complaint, but that there is
no particular person assigned solely to handle complaints from the public. Giauque also
stated that ODOT has a computer database known as the Customer Inquiry
Management System, whereby complaints from the public can be documented.
However, Giauque stated that there is no policy for how complaints are to be logged
into the system.
       {¶ 12} Sandra Rafferty testified that she was employed as a dispatcher for the
OSHP at the time of the accident; that the patrol maintains a daily patrol phone and
radio log; and that she was working at the Lisbon post at the time of the accident.
Rafferty testified that when she receives a call from the public regarding a roadway
Case No. 2009-07679                        -5-                              DECISION

hazard, such as a pothole on a State Route, she determines the location of the pothole
and then calls ODOT’s general phone number to report it. Rafferty stated that there is
no requirement to document a call from the public, and that in her experience, not every
call or complaint from the public gets recorded in the logs.
       {¶ 13} Barry Miner testified that he had worked for ODOT for over 29 years and
that he was a county manager for Columbiana County at the time of the accident. Miner
testified that one of his main job duties was inspecting the roadways and that he spent
approximately three to four hours per day driving the roadways in the county looking for
roadway hazards. Miner testified that he kept a daily log of his work activities on his
calendar. (Joint Exhibit 23.) On Thursday, March 6, 2008, Miner wrote “run 165," which
he explained meant that he had inspected SR 165 for roadway hazards. Miner stated
that SR 165 in Columbiana County is a short section of the roadway, fewer than three
miles long. Miner observed that more than one pothole did exist on SR 165 on March 6,
2008, but determined that none of those potholes warranted immediate repair. Miner
estimated that the potholes on SR 165 on March 6 were “first layer” potholes,
approximately 2 inches deep, 12 inches long and 8 inches wide and that they could
have been repaired with a “shovel full” of patching material. Miner did not document the
exact location of the potholes on SR 165, but stated that it was his intention to have
those potholes patched.     Miner agreed that he did not send a crew to repair any
potholes on SR 165 from March 6 until March 11.
       {¶ 14} Miner agreed that the potholes that existed on the day of the accident were
large and deep, and that they needed to be filled. Miner estimated that the size of the
potholes from Thursday, March 6 to Tuesday, March 11 had increased by ten times.
Miner agreed that SR 165 had been designated as a poor-performing road prior to the
accident, and that it had been scheduled to be repaved, but noted that the repaving
schedule was “about 2 years out.”
       {¶ 15} Miner explained that the Friday before the accident, the area had been hit
by a storm of more than eight inches of snow, and that his crews were working around
Case No. 2009-07679                       -6-                               DECISION

the clock in snow and ice removal on March 7, 8, and 9. Although he was on vacation
on March 10, the work orders show that both snow and ice removal and pothole
patching were taking place in the county that day. Miner stated that snow and ice
removal for that particular weekend would have taken precedence over pothole
patching.
      {¶ 16} Gary Rhodes testified that in 2008, he was a transportation manager for
ODOT in Columbiana County, that his duties included roadway maintenance, and that
his supervisor at the time was Barry Miner. Rhodes stated that if a pothole is over two
inches deep, it must be filled, and that one of his job responsibilities is to identify
potholes and repair those that are hazardous to the traveling public.
      {¶ 17} Harold Lipp testified that he has lived at the corner of Heck Road and SR
165 since 1954, and that he owns the land that is adjacent to the location on SR 165
where the accident took place. Lipp testified that potholes were present on SR 165 for
weeks prior to the accident and that the size and severity of the potholes increased over
time. Lipp also stated that he got into the habit of driving down the center of the road
after making sure no opposing traffic was coming so that he could avoid the potholes.
However, Lipp also stated that he never contacted ODOT, the sheriff, or any other
governmental agency to report the potholes prior to the accident.
      {¶ 18} Lipp testified that when he drove to church on Sunday, March 9, 2008,
there was snow on SR 165 and that the roadway had not been plowed. When he
returned home from church, he noticed that the road had been plowed, and he surmised
that the “state truck” had hit the potholes because he observed that a snow plow blade
had made an imprint in the snow bank adjacent to the potholes. Lipp recalled that he
thought at the time that since the state truck had hit the potholes, they would soon be
patched. Lipp added that he assumed that the plow print had been made by an ODOT
vehicle because he had observed ODOT snow plows clearing snow from SR 165 in the
past. Lipp also stated that on the day of the accident, he drove his tractor over his
Case No. 2009-07679                         -7-                                DECISION

property to the accident scene so that he could see what had happened. However, he
admitted that he remained approximately 25 yards away from the potholes at that time.
       {¶ 19} Plaintiff presented the expert testimony of Joseph Filipino, who stated that
he had worked for the Pennsylvania Department of Transportation (Penn DOT) for more
than 30 years during which time he oversaw eight counties in connection with
maintenance and road repair.        Filipino testified that he developed a preventative
maintenance plan regarding potholes for Penn DOT. Filipino opined that if the potholes
depicted in the photographs were in that same condition three weeks prior to the
accident, they should have been immediately repaired. On cross-examination, Filipino
admitted that this was the first time that he had testified as an expert on potholes.
       {¶ 20} Plaintiff’s second expert, Henry Lipian, testified that he was employed by
OSHP for eight years and is currently employed as an accident reconstructionist for
Introtech, Inc. Lipian inspected and took photographs of the truck on October 15, 2010.
Lipian also reviewed the photographs taken on the day of the accident; however, he
was not able to inspect the decedent’s vehicle as it was not available. Lipian visited the
location of the accident, took photographs, and prepared a scale diagram of the
accident scene.    Lipian testified that until the truck crested the hill, there was no
opportunity for the driver to perceive either oncoming traffic or any imperfections in the
road surface. Lipian also testified that the potholes were located on the right side of the
southbound lane, which presented a high probability of the truck coming into contact
with the potholes because of the wide wheel track of a truck. Lipian stated that in order
to calculate the speed of a vehicle before impact, one must calculate the speed of a
vehicle after impact. However, Lipian stated that the lack of tire marks on the roadway
and the fact that the truck drove over rough, snow-covered terrain resulted in a lack of
evidence from which to calculate a specific speed for either vehicle.
       {¶ 21} Lipian concluded that the truck had struck the potholes based upon his
examination of the photos taken after the accident which depict an imprint of a tire in the
bottom of the pothole. Lipian stated that the tread pattern of the imprint is consistent
Case No. 2009-07679                         -8-                                  DECISION

with the tread pattern on the right front tire of the truck that he inspected. Lipian also
stated that the right front truck tire sustained damage that he described as an unusual
kind of distress pattern of irregular fissures, cracks and gouge marks, consistent with
hitting the jagged, deep edge of the pothole.
       {¶ 22} Furthermore, Lipian opined that the truck made contact with the
decedent’s vehicle at an angle, and that the truck did not gradually drift over into the
opposite lane of traffic. In support of his opinion, Lipian noted that the truck came to
rest in a field after traveling in a diagonal direction from impact. Lipian stated that if the
truck had traveled in the opposite lane of traffic and struck the decedent’s vehicle head-
on, he would have expected the truck to stay in that lane and push the decedent’s
vehicle backwards. Lipian also questioned whether Goscenski was wearing his seat
belt as he had reported to OSHP based upon the damage to the steering wheel.
       {¶ 23} Defendant’s expert, Timothy Tuttle, testified that since 2001, he has
worked in the private sector as an accident reconstructionist after having retired from
OSHP. Tuttle explained that he inspected the truck, that he reviewed the OSHP traffic
crash report, the measurements taken by OSHP, the photographs, and that he visited
the scene of the accident. Tuttle stated that after he examined the damage to both
vehicles, he found that it was a “classic head-on collision.” Tuttle opined that the truck
was in the northbound lane when it collided with the car, and that the truck did not strike
the potholes. Tuttle stated that the impact of the vehicles occurred entirely within the
northbound lane, and that the damage was inconsistent with the truck being in the
southbound lane, striking the potholes and then swerving or turning into the northbound
lane. Tuttle stated that in his review of the evidence, there was no angle of impact; that
the vehicles were in line with each other. Tuttle disagreed with Lipian’s interpretation of
how the crash occurred. Tuttle stated that if the crash had occurred in the manner in
which Lipian testified, the damage to the front of the truck would have a wedge shape or
an angle shape. Tuttle also explained that in his opinion, if the accident were to have
Case No. 2009-07679                        -9-                                DECISION

occurred the way Lipian opined, the swerving of the truck and the lateral friction that
would have been generated by the tires would have been very high, and it should have
left a scuff or a tire mark on the roadway, which is referred to as a “yaw mark.” Tuttle
noted that the photos of the accident scene show no yaw marks. Tuttle also stated that
if the truck had traveled at a speed of 50 miles per hour and impacted the vehicle at an
angle, the truck would have rolled over.
      {¶ 24} Tuttle related that he saw no evidence of damage to the truck that would
show that it had hit a pothole, and that the imprint of the tire in the pothole was
“completely different” from the truck tire imprint. Tuttle stated he was able to calculate
the speed of the truck by using the concept of conservation of momentum, and he
opined that the truck was traveling at 64 mph.
      {¶ 25} Upon review of the expert testimony of Lipian and Tuttle, the court finds
that the testimony of Lipian was more persuasive than that of Tuttle. The court finds
that Goscenski’s testimony that his truck struck the potholes which caused him to lose
control of his truck was credible. The court further finds that Lipian’s testimony of the
manner in which the accident happened was more credible than Tuttle’s version of
events. Accordingly, the court finds that Goscenski’s truck did strike the potholes.
      {¶ 26} The issue then becomes whether plaintiff has proven that defendant
committed a breach of the duty owed to plaintiff’s decedent. “To maintain a wrongful
death action on a theory of negligence, a plaintiff must show (1) the existence of a duty
owing to plaintiff's decedent, (2) a breach of that duty, and (3) proximate causation
between the breach of duty and the death.” Littleton v. Good Samaritan Hosp. & Health
Ctr., 39 Ohio St.3d 86, 92 (1988), citing Bennison v. Stillpass Transit Co., 5 Ohio St.2d
122 (1966).
      {¶ 27} Defendant has a general duty to maintain its highways in a reasonably
safe condition for the traveling public. Knickel v. Ohio Dept. of Transp., 49 Ohio App.2d
335 (10th Dist.1976).     However, defendant is not an insurer of the safety of its
highways. See Rhodus v. Ohio Dept. of Transp., 67 Ohio App.3d 723 (10th Dist.1990).
Case No. 2009-07679                       - 10 -                             DECISION

      {¶ 28} It is well-settled that ODOT may be subject to liability for its failure to
exercise   reasonable care in maintaining state highways.       White v. Ohio Dept. of
Transp., 56 Ohio St.3d 39, 42 (1990).      However, ODOT is not liable for damages
caused by dangerous conditions on state highways unless it has actual or constructive
notice of the precise condition alleged to have caused the injuries in question. Manning
v. Ohio Dept. of Transp., 10th Dist. Nos. 96API07-931, 96API07-932, 96API07-937
(April 24, 1997), citing McClellan v. Ohio Dept. of Transp., 34 Ohio App.3d 247, 249
(10th Dist.1986). “In order for there to be constructive notice of a nuisance or defect in
the highway, it must have existed for such length of time as to impute knowledge or
notice.” Id. at 250. The state cannot be charged with neglect unless it is demonstrated
that the state had knowledge, either constructive or actual, of the roadway defect
complained of, and within sufficient time to remedy it. Danko v. Ohio Dept. of Transp.,
Ct. of Cl. No. 90-05881 (July 29, 1992), aff’d, 10th Dist. No. 92AP-1183 (Feb. 4, 1993);
see also Ruwe v. Bd. of Commrs. of Hamilton Cty., 21 Ohio St.3d 80 (1986); In re
Estate of Fahle, 90 Ohio App. 195 (6th Dist.1950). ODOT must be given a reasonable
amount of time to mobilize its resources for the repair of highway defects and also to
prioritize among competing repair needs of the state’s highways. Danko, supra, at 3.
Size of a defect in the roadway is insufficient to show notice or duration of existence.
O’Neil v. Ohio Dept. of Transp., 61 Ohio Misc.2d 287 (Ct. of Cl.1988).
      {¶ 29} Defendant’s second expert, David Ray, testified that he is the state
maintenance engineer for ODOT, that he works in the central office in Columbus, and
that his duties include setting the policy for maintenance of state roadways.        Ray
explained that there are two different inspection methods that ODOT uses. State-wide
inspections are conducted by inspectors who review all 43,000 lane miles of Ohio’s
state roadways on an annual basis to identify pavement deficiencies. Ray described
the state inspections as a long-range planning tool. The second inspection method is
informal and is made by the county level managers on a daily basis.
Case No. 2009-07679                       - 11 -                             DECISION

       {¶ 30} Ray testified that various factors are involved in the formation of potholes
such as soil conditions, pavement types, compaction of the pavement, freeze/thaw
conditions, and traffic frequency. Ray added that weather affects potholes, especially
during freeze/thaw cycles. Ray noted after reviewing the work records for Columbiana
County, that in the seven days prior to the accident, the county performed both snow
and ice removal and pothole patching.
       {¶ 31} Ray stated that although there is no requirement to document incoming
calls from the motoring public, if a motorist were to report a pothole, it would be acted
upon and any such call would be taken seriously. Ray testified that he helped develop
a maintenance operations overview, wherein all ODOT employees were taught that
when they see a pothole or other deficiency they should let a manager know about it.
Ray testified that he would expect any ODOT employee who observed potholes such as
the ones depicted in the photos from the accident to report them immediately.
       {¶ 32} Ray admitted that in his review of the work records, no potholes were
patched on SR 165 in the 30 days prior to the accident, and that the last patching
recorded of SR 165 was on January 18, 2008. Ray also noted that ODOT had no
record of any call made by Rieseck or anyone else who had reported potholes on SR
165 prior to the accident.
       {¶ 33} Ray testified that in winter operations, ODOT prioritizes routes for snow
and ice removal. Ray agreed that during the winter, snow and ice removal is performed
prior to pothole patching.   However, if he encountered potholes such as the ones
depicted in the accident scene photographs, he testified that he would order them to be
immediately repaired.
       {¶ 34} Upon review of the testimony and evidence presented at trial, the court
finds the following. Barry Miner testified that he inspected SR 165 on March 6 and that
he observed potholes on the roadway but that in his opinion, they did not need
immediate repair at that time. However, Miner also testified that it was his intention to
repair those potholes eventually. There is no documentation in evidence to show that
Case No. 2009-07679                      - 12 -                            DECISION

Miner scheduled any potholes for repair on SR 165 between March 6 and March 11.
Defendant’s records show that the last time that pothole patching occurred on SR 165
prior to the accident was on January 18.      Both Rieseck and Lipp agreed that the
condition of the potholes deteriorated over time. Rieseck testified that the potholes
depicted in the photographs appeared larger, wider, and deeper than the potholes
appeared when he reported them. All witnesses agreed that the potholes in existence
on March 11 constituted a hazard.
      {¶ 35} The court finds that ODOT had actual notice that potholes existed on SR
165 on March 6, 2008. However, the court further finds that the potholes on March 6
were not of the same magnitude as the potholes on March 11. Therefore, the court
finds that ODOT did not have actual notice of the precise condition of the roadway
defect that was present on March 11.
      {¶ 36} On March 7, a snowstorm hit the area. Although ODOT has no record of
inspecting   SR 165 for potholes after March 6, it is undisputed that ODOT was
responsible for plowing snow in the area where the accident occurred. Defendant’s
records establish that snow and ice removal was taking place in the county on March 6-
10. It is also undisputed that ODOT was patching potholes on other roadways in the
county on March 6, 7, and 10. The court finds that ODOT had the responsibility to plow
snow from SR 165, that it was aware that potholes existed in the area on March 6, and
that both snow removal and pothole patching were taking place at that time.         The
greater weight of the evidence shows that sufficient time passed from March 6 to March
11 for ODOT to have learned that the potholes that had existed on SR 165 on March 6
were deteriorating and were becoming a hazard to the motoring public. Although Ray
testified that potholes are unpredictable, it is foreseeable that a pothole that is left
unrepaired, especially during the winter months, can grow into the hazard that existed
on March 11. The court finds that plaintiff has established, through the testimony of
Case No. 2009-07679                       - 13 -                              DECISION

Rieseck, Lipp, and Miner, that the potholes that existed on March 6 were the same
potholes that existed on March 11 from mile marker 1.0 to 1.3 on SR 165.
      {¶ 37} Lipp testified that on Sunday, March 9 when he returned home from
church, he saw evidence that a snowplow had struck the potholes and had left an
imprint in the snow bank near the side of the road. Although defendant argues that
there is no evidence that an ODOT snow plow had made an imprint in the snow, it is
undisputed that ODOT was responsible for snow and ice removal in that area of SR
165. Lipp testified that when he drove to church on March 9, SR 165 had not been
plowed but when he returned home, it had been plowed. The court finds that ODOT
cleared the snow on March 9 and traveled over SR 165 where the potholes were. The
court finds that it is more likely than not that the potholes had deteriorated from March 6
to March 9, especially in light of the testimony of Ray, who stated that weather during
the freeze/thaw period affects pothole formation.       Upon review of the evidence
presented, the court finds that plaintiff has proven by a preponderance of the evidence,
that by March 9, ODOT had constructive notice that the potholes on SR 165 were
unreasonably dangerous to the traveling public and in need of immediate repair.
ODOT’s subsequent failure to repair the potholes before March 11 was a breach of its
duty owed to plaintiff’s decedent and to the traveling public. The court further finds that
defendant’s failure to repair the potholes on SR 165 from mile marker 1.0 to 1.3 was the
sole proximate cause of plaintiff’s injuries. Goscenski testified credibly that after his
truck struck the potholes, he was unable to control his truck and crossed the center line,
striking plaintiff’s decedent’s vehicle. The court finds that but for the existence of the
potholes, the motor vehicle collision would not have occurred.
      {¶ 38} Defendant requests that the court apportion the percentage of fault
attributable to Goscenski pursuant to R.C. 2307.22. However, based upon the court’s
finding that ODOT’s negligence was the sole proximate cause of the collision, R.C.
2307.22 is not applicable.
Case No. 2009-07679                        - 14 -                               DECISION

         {¶ 39} For the foregoing reasons, the court finds that plaintiff has proven his
claims of negligence and wrongful death by a preponderance of the evidence, and,
accordingly, judgment is recommended in favor of plaintiff.
         {¶ 40} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).


                                           _____________________________________
                                           HOLLY TRUE SHAVER
                                           Magistrate

cc:


Ellen M. McCarthy                             Emily M. Simmons
Jamie R. Lebovitz                             William C. Becker
1370 Ontario Street, Suite 100                Assistant Attorneys General
Cleveland, Ohio 44113-1792                    150 East Gay Street, 18th Floor
                                              Columbus, Ohio 43215-3130

002
Filed March 19, 2012
To S.C. Reporter January 16, 2013
