[Cite as Foster v. Dept. of Transp., 2010-Ohio-4798.]

                                       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




GONEATHIOUS ALLEN FOSTER, et al.

        Plaintiffs

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-05374-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} On January 16, 2010, at approximately 5:45 a.m., plaintiff, Goneathious
Allen Foster, was traveling north on Interstate 75 in a construction area when his 1999
Chevrolet Malibu struck a massive pothole in the center roadway lane causing
substantial damage to the vehicle. Plaintiff located the pothole “on Mile Marker #32”
and described the defect as “the biggest pothole I have ever seen.” The damage event
was investigated by a local Ohio State Highway Patrol (OSHP) unit and a “Traffic Crash
Report” (copy submitted) was filed incident to the investigation.
        {¶ 2} Plaintiff contended that his property damage was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in
maintaining a hazardous roadway condition in a working construction area on Interstate
75 in Warren County. Plaintiff seeks damage recovery in the amount of $1,218.51, the
cost of replacement parts, related repair expenses, and towing costs resulting from the
January 16, 2010 incident. Plaintiff also requested reimbursement of $4.00, the cost of
the OSHP “Traffic Crash Report.” This fee request is not compensable in a claim of this
type and therefore, is denied. The $25.00 filing fee was paid and plaintiff requested
reimbursement of that cost along with his damage claim.
      {¶ 3} Defendant acknowledged that the roadway area where plaintiff’s incident
occurred was located within the limits of a working construction project under the control
of ODOT contractor John R. Jurgensen Company (Jurgensen). Defendant explained
that this particular project “dealt with grading, draining, paving with asphalt concrete on
I-75, interchange reconstruction of SR 22 and bridge replacements at several locations
in Warren County.” According to defendant, the construction project limits “corresponds
to state mileposts 32.10 to 40.50” on Interstate 75 and plaintiff’s incident occurred
“around milepost 32.30,” 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.
      {¶ 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. 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.
       {¶ 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 neither ODOT nor Jurgensen had any
notice of the particular pothole prior to plaintiff’s property damage event. Defendant
pointed out that ODOT records “indicate that one call was received regarding a pothole
on I-75 but it is not in the same location as Plaintiff Foster’s incident.” The submitted
complaint record show a complaint about a pothole on Interstate 75 at milepost 32.820
was received on January 15, 2010. Defendant advised, “[i]t should be noted this portion
of I-75 has an average daily traffic volume of 70,000, however, and only one call was
received for I-75 prior to plaintiff’s alleged incident.” Defendant contended that plaintiff
failed to offer any evidence of negligent roadway maintenance on the part of ODOT and
failed to produce evidence to that establish his property damage was attributable to
conduct on either the part of ODOT or Jurgensen.
       {¶ 7} Defendant submitted a letter from Jurgensen Safety Manager, Travis
Roberts, who recorded Jurgensen was notified of a pothole “on NB I-75 near SR-122”
by the OSHP at approximately 9:00 p.m. on January 14, 2010. According to Roberts,
that pothole was promptly patched by Jurgensen personnel beginning at 9:45 p.m.
Roberts noted that when the pothole was patched at 9:45 p.m. “[t]wo (2) lanes of traffic
were closed due to the large size of the pothole; the pothole was approximately 3.5 ft. x
28 ft.” According to Roberts, the massive pothole was patched with cold patch material,
had formed in existing area of pavement not presently under construction, and was
completely repaired by 2:00 a.m. on January 15, 2010. Roberts reported that, “[f]our (4)
hours later (Jurgensen) was contacted that a hole had reformed” and this time repairs
were made by ODOT personnel using cold patch material. Roberts pointed out that
ODOT subsequently directed Jurgensen to close two lanes of traffic and repair the
pothole with hot mix asphalt and these repairs were completed by 7:30 p.m. on January
15, 2010. Roberts reported that Jurgensen “closed two (2) lanes of traffic on I-75 NB
from State Route 63 to State Route 122” on January 16, 2010. Roberts also reported
that “[t]his section of roadway was cold planed and repaved upon approval from ODOT.”
The referenced section of Interstate 75 North from approximate milepost 29.1 to 32.8.
Submitted time sheets for work performed in patching the pothole on the night of
January 14, 2010 reflect that four tons of cold mix material were used to implement
repairs. It appears from the time sheet dated January 15, 2010 that 59.21 tons of
asphalt were used to effectuate pothole repairs on that date. The submitted January
16, 2010 time sheet indicates that pothole repair was performed starting at 5:00 a.m.
       {¶ 8} Plaintiff filed a response pointing out that two other motorists struck the
pothole that damaged his vehicle. Plaintiff again asserted that, “I hit the biggest pothole
I have ever seen.” Evidence from another claim filed in this court No. 2010-02090-AD
establishes that the pothole plaintiff’s vehicle struck was present on the roadway on
January 15, 2010. The pothole had apparently been previously patched and the patch
had deteriorated by the time plaintiff’s incident occurred.
       {¶ 9} 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.
      {¶ 10} 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.
      {¶ 11} 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 insufficient evidence ODOT or Jurgensen had actual
notice that the pothole had reformed prior to plaintiff’s incident at 5:45 a.m. on January
16, 2010.   Therefore, in order to recover plaintiff must produce evidence to prove
constructive notice of the defect or negligent maintenance.
      {¶ 12} “[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.
      {¶ 13} Generally, 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.
      {¶ 14} 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. Ordinarily size of a defect (pothole) 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. However, the massive
size of a defect coupled with the knowledge that the pothole presented a recurring
problem is sufficient to prove constructive notice. Fite v. Ohio Dept. of Transp., Ct. of
Cl. No. 2009-05757-AD, 2009-Ohio-7124.
        {¶ 15} Additionally, plaintiff has produced evidence to infer defendant maintains
the roadway negligently. Denis. Plaintiff’s evidence submitted shows that the particular
damage-causing pothole was formed when an existing patch deteriorated. This fact
alone does not provide conclusive proof of negligent maintenance. A pothole patch that
deteriorates in less than ten days is prima facie evidence of negligent maintenance.
Matala v. Ohio Department of Transportation, Ct. of Cl. No. 2003-01270-AD, 2003-Ohio-
2618; Schrock v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-02460-AD, 2005-Ohio-2479.
Evidence has shown that plaintiff’s vehicle was damaged by a pothole that had been
patched on January 14, 2010 and the repair patch failed by 5:45 a.m. on January 16,
2010.
        {¶ 16} The fact that the pothole plaintiff’s car struck deteriorated in a time frame
of less than ten days warrants application of the standard expressed in Matala; Fisher v.
Ohio Dept. of Transp., Ct. of Cl. No. 2007-04869-AD, 2007-Ohio-5288; Romes v. Ohio
Dept. of Transp., Ct. of Cl. No. 2008-01826-AD, 2008-Ohio-4624. Defendant is liable to
plaintiff for the damage claimed $1,218.51, plus the $25.00 filing fee which may be
awarded as compensable costs pursuant to R.C. 2335.19. Bailey v. Ohio Department
of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.




                                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




GONEATHIOUS ALLEN FOSTER, et al.
        Plaintiffs

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-05374-AD

Clerk Miles C. Durfey


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 plaintiffs in the amount of $1,243.51, which includes the filing fee. Court costs are
assessed against defendant.




                                           MILES C. DURFEY
                                           Clerk

Entry cc:

Goneathious Allen Foster                   Jolene M. Molitoris, Director
Carolyn D. Hill                            Department of Transportation
245 Sandhurst Drive                        1980 West Broad Street
Dayton, Ohio 45405                         Columbus, Ohio 43223
RDK/laa
5/25
Filed 6/8/10
Sent to S.C. reporter 10/1/10
