[Cite as Donohue v. Ohio Dept. of Transp., Dist. 2, 2011-Ohio-5116.]



                                      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




WILLIAM A. DONOHUE

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 2

       Defendant

        Case No. 2011-02328-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, William Donohue, filed this action against defendant, Department
of Transportation (ODOT), asserting that his 2007 Volkswagon Jetta was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
roadway condition on Interstate 475 in Toledo, Ohio.                   Plaintiff related that he was
traveling east on Interstate 475 on December 13, 2010, at 8:00 p.m. when his vehicle
struck a pothole “just past the Upton bridge.” Plaintiff pointed out that the driver’s side
tires and rims were destroyed as a result of the impact. Plaintiff requested damages in
the amount of $551.34, the total cost of two replacement tires, car rental, and taxi fare
to and from the Toledo airport while his car was being repaired. The filing fee was paid.
        {¶2}    Defendant explained that the roadway area where plaintiff’s damage event
occurred was within the limits of a working construction project under the control of
ODOT contractor E.S. Wagner Company (Wagner).                          Defendant related that the
particular construction project dealt with improvements to a section of roadway “by
grading, draining, paving with stone matrix asphalt concrete on an asphalt concrete
base.” According to defendant, the construction project limits “are county mileposts
14.18 to 16.20 on I-475 in Lucas County” and plaintiff’s damage incident occurred at
milepost 15.38, a location within the construction area limits. Defendant asserted that
this particular construction project was under the control of Wagner and consequently
ODOT had no responsibility for any damage or mishap on the roadway within the
construction project limits.
       {¶3}   Defendant        argued   that Wagner,    by   contractual agreement,   was
responsible for maintaining the roadway within the construction zone. Therefore, ODOT
contended that Wagner 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 onsite conducting inspection activities.
       {¶4}   Plaintiff did not file a response.
       {¶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. 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.
        {¶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}   Alternatively, defendant denied that either ODOT or Wagner had any
notice of the particular pothole prior to plaintiff’s property damage event. Defendant
pointed out that ODOT records “indicate that no calls or complaints were received
regarding a pothole prior to Plaintiff Donohue’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 Wagner.
        {¶8}   Defendant submitted a letter from Wagner’s General Counsel, Kent
Huber, who recorded, “the pothole and debris originated in the evening on December
13, 2010 from pavement that was located on eastbound IR-475 near Upton Ave. First,
E.S. Wagner Company was not negligent in failing to identify a latent defect in the
pavement which did not manifest itself until E.S. Wagner personnel had completed their
operations for the day and were no longer on the project site. * * * E.S. Wagner
Company is not responsible for the property damage incurred by the claimants on
December 13, 2010.”
        {¶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 no evidence that defendant had actual notice of the
pothole. 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, 47 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 at 4.
      {¶13} 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. 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.
      {¶15} 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




WILLIAM A. DONOHUE

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 2

        Defendant

         Case No. 2011-02328-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:

William A. Donohue                                Jerry Wray, Director
416 W. Dill Drive                                 Department of Transportation
DeWitt, Michigan 48820                            1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
4/29
Filed 6/29/11
Sent to S.C. reporter 10/4/11
