[Cite as Sheppard v. Ohio Dept. of Transp., 2011-Ohio-6911.]




                                      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
CLARK L. SHEPPARD

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant


Case No. 2011-06081-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    On February 13, 2011, at approximately 12:15 a.m., plaintiff, Clark
Sheppard, was traveling south on Interstate 75 “between SR 35 and exit 51” when he
“hit a very large pothole.” Plaintiff asserted the impact caused substantial damage to
his 2002 BMW. Plaintiff asserted that the damage to the automobile was proximately
caused by negligence on the part of defendant, Department of Transportation (DOT), in
failing to maintain the roadway free of hazardous conditions. Plaintiff filed this complaint
seeking to recover $658.73, which represents related repair costs and reimbursement of
mileage expenses in transporting the car to a repair facility. The filing fee was paid.
        {¶2}    Defendant explained that the roadway area where plaintiff’s incident
occurred was within the limits of a working construction project under the control of
ODOT contractor, The Ruhlin Company (Ruhlin). Defendant related that the particular
construction project “dealt with grading, draining, paving with asphalt concrete and
repair several structures in Montgomery County on I-75 between state mileposts 52.00
to 53.18.” Plaintiff’s damage incident occurred within the project limits.
        {¶3}    Defendant asserted that this particular construction project was under the
control of Ruhlin and consequently ODOT had no responsibility for any damage or
mishap on the roadway within the construction project limits. Defendant argued that
Ruhlin, by contractual agreement, was responsible for maintaining the roadway within
the construction zone. Therefore, ODOT contended that Ruhlin 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.
      {¶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.
      {¶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 either ODOT or Ruhlin had any notice
“of the pothole on I-75 prior to plaintiff’s incident.”    Defendant pointed out   ODOT
records “indicate that there were no complaints for potholes on I-75.” Defendant argued
that plaintiff failed to produce any evidence to prove the damage-causing pothole was
attributable to any conduct on either the part of ODOT or Ruhlin. Defendant submitted
documents which indicate Ruhlin was notified of the pothole at approximately 11:00
a.m. on February 14, 2011, on I-75, and that repairs were completed by 1:30 p.m..
      {¶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 no 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} 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
CLARK L. SHEPPARD

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant


Case No. 2011-06081-AD

Acting 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
                                                  Acting Clerk

Entry cc:

Clark L. Sheppard                                 Jerry Wray, Director
1568 N. Webb Road                                 Department of Transportation
Wilmington, Ohio 45177                            1980 West Broad Street
                                                  Columbus, Ohio 43223
8/2
Filed 8/11/11
Sent to S.C. reporter 1/3/12
