[Cite as Barnes v. Dept. of Transp., 2011-Ohio-6989.]




                                       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
RICKY D. BARNES

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2011-08814-AD

Deputy Clerk Daniel R. Borchert

                                     MEMORANDUM DECISION

        {¶ 1} Plaintiff, Ricky D. Barnes, filed this action against defendant, Department
of Transportation (ODOT), contending his vehicle was damaged as a proximate result of
negligence on the part of ODOT in maintaining a hazardous condition on Interstate 75
North in Montgomery County. Specifically, plaintiff noted his car was damaged when
the vehicle struck a pothole in the right lane on Interstate 75 North in a construction
zone. Plaintiff recalled his damage incident occurred on May 1, 2011. In his complaint,
plaintiff requested damages in the amount of $234.16, the cost of a replacement rim
and related repair expenses. The $25.00 filing fee was paid.
        {¶ 2} Based upon information contained in an Ohio State Highway Patrol report
submitted with the investigation report, defendant determined the roadway area where
plaintiff's incident occurred was within the limits of a working construction project under
the control of ODOT contractor,                   Kokosing Construction Company (Kokosing).
Defendant explained the construction project dealt “with grading, draining, resurfacing
with asphalt concrete and reconstructing numerous structures in Montgomery County
on I-75 between * * * state mileposts 53.80 to 55.50.” Defendant advised that the
pothole plaintiff hit was at 53.8 in Montgomery County, which was located within the
limits of the construction project maintained by Kokosing. Defendant denied liability in
this matter based on the contention that neither ODOT or Kokosing personnel had any
knowledge of the damage-causing pothole on Interstate 75 North prior to plaintiff’s
occurrence.      Defendant contended Kokosing, by contractual agreement, was
responsible for maintaining the roadway within the construction zone and consequently
ODOT had no responsibility for any damage or mishap on the roadway within the
construction project limits.   Therefore, ODOT argues Kokosing is the proper party
defendant in this action. Defendant implied 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.
      {¶ 3} In addition, defendant contended plaintiff failed to introduce sufficient
evidence to prove his damage was proximately caused by roadway conditions created
by ODOT or its contractor. All construction work was to be performed in accordance
with ODOT requirements and specifications and subject to ODOT approval. Defendant
presented an email communication from Kokosing engineer Mark Peters, who stated
that according to the daily inspection reports there is no mention of potholes forming in
the specified area of plaintiff’s incident. Peters suggested that plaintiff’s event did not
occur within the construction zone.
      {¶ 4} Plaintiff filed a response essentially reiterating the allegations contained in
his complaint.
      {¶ 5} 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.
      {¶ 6} 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.
      {¶ 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 insufficient
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

RICKY D. BARNES

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2011-08814-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:
Ricky D. Barnes                                   Jerry Wray, Director
4871 North Bank Drive                             Department of Transportation
P.O. Box 1054                                     1980 West Broad Street
Buckeye Lake, Ohio 43008                          Columbus, Ohio 43223

9/13
Filed 9/28/11
Sent to S.C. reporter 2/6/12
