2008-Ohio-7091
No. 2008-07071-AD.Court of Claims of Ohio.
Filed November 6, 2008.
MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On March 22, 2008, at approximately 6:00 a.m., plaintiff, Tamela Drum, was traveling on US Route 20 in Lake County, when her 2000 Ford Escort struck a pothole causing damage to the vehicle.
{¶ 2} 2) Plaintiff filed this complaint seeking to recover $336.90, the cost of replacement parts and repair expenses that she incurred as a result of her vehicle striking the pothole in the roadway. Plaintiff implied that she incurred these damages as a proximate cause of negligence on the part of defendant, Department of Transportation (“DOT”), in maintaining the roadway in a construction zone on US Route 20 in Lake County. The filing fee was paid.
{¶ 3} 3) Defendant observed that the area where plaintiff’s damage occurred was located within a construction project zone under the control of DOT contractor, Great Lakes Construction Company (“Great Lakes”). Additionally, defendant denied any liability in this matter based on the contention that neither DOT nor Great Lakes had
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any knowledge of the particular pothole plaintiff’s car struck. Defendant has no record of receiving any prior calls or complaints regarding the particular damage-causing pothole on US Route 20 prior to March 22, 2008. According to defendant’s information, the construction zone maintained by Great Lakes covered US Route 20 between mileposts 12.21 to 14.25 which included the approximate location of plaintiff’s incident.
{¶ 4} 4) Defendant submitted a written statement from Great Lakes representative, William Hocevar, concerning construction operations on US Route 20. Hocevar noted that during February and March 2008, Great Lakes was “in winter shut down” and was consequently not working on the construction project. Hocevar reported Great Lakes did repair potholes when notified of any roadway defect within the construction zone by any government entity, including DOT. Records indicate potholes were last repaired on March 14, 2008 by Great Lakes personnel pursuant to information received from DOT.
{¶ 5} 5) All construction was to be performed to DOT requirements and specifications. Defendant asserted that Great Lakes, by contractual agreement, was responsible for maintaining the roadway within the construction area. Therefore, DOT argued that Great Lakes 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 to an independent contractor when that contractor takes control over a particular section of roadway.
CONCLUSIONS OF LAW {¶ 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.
{¶ 7} 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
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reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR 64, 507 N.E. 2d 1179. 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. However, proof of notice of a dangerous condition is not necessary when defendant’s own agents actively cause such condition. Se 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.
{¶ 8} The duty of DOT to maintain the roadway in a safe drivable condition is not delegable to an independent contractor involved in roadway construction. DOT 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 DOT 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 particular construction work. Se Roadway Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119. However, no evidence other than plaintiff’s assertion has been produced to show that a known hazardous condition was maintained.
{¶ 9} For plaintiff to prevail on a claim of negligence, she must prove, by a preponderance of the evidence, that defendant owed her a duty, that it breached that duty, and that the breach proximately caused her injuries. Armstrong v. Best Buy Company, Inc. 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E. 2d 1088, ¶ 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 she 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.
{¶ 10} In order to find liability for a damage claim occurring in a construction
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area, the court must look at the totality of the circumstances to determine whether DOT 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 unreasonable risk of harm is the precise duty owed by DOT to the traveling public under both normal traffic conditions 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; Rhodus, 67 Ohio App. 3d at 729, 588 N.E. 2d 864 Feichtner, at 354. In the instant claim, plaintiff has failed to introduce sufficient evidence to prove defendant or its agents maintained a known hazardous roadway condition. Plaintiff failed to prove her property damage was connected to any conduct under the control of defendant, that defendant was negligent in maintaining the construction area, or that there was any negligence on the part of defendant or its agents. Taylor v. Transportation Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. Consequently, plaintiff’s claim is denied.
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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.
Entry cc:
Tamela Drum 115 Normandy Drive Painesville Twp., Ohio 44077
James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223
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