[Cite as Polhamus v. Ohio Dept. of Transp., 2011-Ohio-1947.]

                                      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




JOHN S. POLHAMUS

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-08691-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, John S. Polhamus, filed this action against defendant,
Department of Transportation (ODOT), contending that his 1995 Ford Escort was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition in a construction area on Interstate 75 in Dayton. In his complaint,
plaintiff described his damage incident noting the tie rod ends, wheel, and tire on his car
were damaged when the vehicle struck a large pothole “located around the last part of
the ‘S’ curve near the Art Center area” on Interstate 75 South. Plaintiff recalled the
described incident occurred on December 10, 2008 at approximately 5:30 a.m. and “[i]t
was very dark, rainy that morning.” Plaintiff related, “[l]ater that morning there were
people calling into the local radio shows that had the same issue (with) this pothole.” In
his complaint, plaintiff requested damages in the amount of $519.25, the total cost of
replacement parts and related automotive repair expenses he incurred resulting from
the December 10, 2008 incident. The $25.00 filing fee was paid and plaintiff requested
reimbursement of that cost along with his damage claim.
        {¶ 2} According to defendant, 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, Inc. (Kokosing).               Defendant
explained the particular construction project “dealt with grading, draining, resurfacing
with asphalt concrete and reconstructing numerous structures in Montgomery County
on I-75 between county mileposts 13.11 to 14.58 or state milepost 53.88 to 55.50.”
Defendant advised, “[p]laintiff’s incident happened at state milepost 55.32 which is
within the project limits.” Defendant asserted Kokosing, by contractual agreement, was
responsible for any damage occurrences or mishaps within the construction zone.
Therefore, ODOT argued 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 for construction activity. Furthermore,
defendant contended plaintiff failed to introduce sufficient evidence to prove his damage
was proximately caused by roadway conditions created by ODOT or Kokosing or any
conduct attributable to ODOT or Kokosing. All construction work was to be performed
in accordance with ODOT requirements and specifications and subject to ODOT
approval.   Additionally, ODOT personnel maintained an onsite presence performing
work inspections.
      {¶ 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, 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 has the duty to maintain its highways in a reasonable 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
contention that ODOT did not owe any duty in regard to the construction project,
defendant was charged with duties to inspect the particular construction site and correct
any known deficiencies in connection with particular construction work.          Roadway
Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119.
       {¶ 5} Alternatively, defendant argued that neither ODOT nor Kokosing “had
notice of the pothole on I-75 prior to plaintiff’s 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 Kokosing.
       {¶ 6} Defendant submitted a copy of a written statement from Kokosing
representative, Pamela LeBlanc, concerning work performed by Kokosing employees
on Interstate 75 on December 10, 2008, which included pothole patching operations.
LeBlanc pointed out Kokosing was notified of the particular damage-causing pothole (at
milepost 55.32) by ODOT at approximately 7:00 am. on December 8, 2008. According
to LeBlanc, two roadway lanes in the vicinity of the pothole location were closed by 8:00
a.m. and by 9:00 a.m. the pothole was patched.           LeBlanc denied any Kokosing
employee had any knowledge of the pothole prior to 7:00 a.m. on December 10, 2008.
       {¶ 7} Plaintiff submitted a document in response to defendant’s position noting
many vehicles were damaged by the pothole at milepost 55.32 on Interstate 75 prior to
7:00 a.m. on December 10, 2008. Plaintiff did not offer any evidence to establish the
length of time the pothole at milepost 55.32 existed prior to the stated time of his
damage occurrence (5:30 am. on December 10, 2008).
      {¶ 8} 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.
      {¶ 9} 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.
      {¶ 10} Generally, 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.
      {¶ 11} “[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.
      {¶ 12} 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.
      {¶ 13} 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.
      {¶ 14} 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




JOHN S. POLHAMUS

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-08691-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:

John S. Polhamus                                  Jolene M. Molitoris, Director
12 Tonywood Court                                 Department of Transportation
West Carrollton, Ohio 45499                       1980 West Broad Street
                                                  Columbus, Ohio 43223

RDK/laa
1/19
Filed 2/4/11
Sent to S.C. reporter 4/15/11
