Gorman v. Ohio Dept. of Transp.

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[Cite as Gorman v. Ohio Dept. of Transp., 2009-Ohio-6368.] 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 CINDY GORMAN Plaintiff v. OHIO DEPT. OF TRANSPORTATION Defendant Case No. 2009-03932-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION {¶ 1} On March 11, 2009, at approximately 6:50 a.m., plaintiff, Cindy Gorman, was traveling on Interstate 75 through a construction zone when her 1999 Pontiac Grand Am GT struck a roadway defect (presumably a pothole) causing suspension damage to the vehicle. Plaintiff located the defective condition right before exit sign 22" on a roadway where the construction road meets the existing road. According to plaintiff, the particular area normally had an asphalt patch bridging the transition site from the portion of the roadway under construction abutting the existing untouched pavement, but the asphalt patch had apparently deteriorated resulting in a roadway depression. Plaintiff pointed out this roadway defect has since been repaired. Plaintiff asserted the damage to her car was proximately caused by negligence on the part of defendant, Department of Transportation ( DOT ), in failing to maintain the roadway free of defects within a construction zone. Plaintiff filed this complaint seeking to recover damages in the amount of $942.53 for automotive repair expenses she incurred resulting from the March 11, 2009 incident. The $25.00 filing fee was paid and plaintiff requested reimbursement of that cost along with her damage claim. {¶ 2} Defendant acknowledged that plaintiff s damage incident occurred within the limits of a construction project under the control of DOT contractor John R. Jurgensen Company ( Jurgensen ). Defendant pointed out that the construction project dealt with widening Interstate 75 between mileposts 21.0 and 32.0 in Butler and Warren Counties. Defendant located plaintiff s damage occurrence near milepost 24.2 on Interstate 75 in Butler County. Defendant asserted that Jurgensen bore responsibility for pothole repair within the limits of the construction project. Furthermore, defendant denied liability based on the contention that neither DOT nor Jurgensen had any prior knowledge of the pothole plaintiff s vehicle struck. Defendant denied having any record of receiving any calls or complaints about a pothole or other defect at milepost 24.2 on Interstate 75 prior to plaintiff s incident. {¶ 3} Defendant contended that plaintiff did not produce any evidence to establish that the damage-causing pothole was formed by any conduct attributable to either DOT or Jurgensen. All construction operations within the project limits were to be performed to DOT approval, requirements, and specifications. Defendant maintained a DOT Project Engineer at the construction operation. Defendant related that Jurgensen Company is responsible for any occurrences or mishaps in the area in which they are working. Defendant implied that all duties, such as the duty to maintain, and the duty to repair defects were delegated when an independent contractor conducts operations on a particular section of roadway. {¶ 4} Defendant submitted a copy of written correspondence from Jurgensen Project Manager, Kate Holden, regarding the condition of the roadway on Interstate 75 South on March 11, 2009. Holden noted Jurgensen has no record of any roadway defects throughout the construction project area on March 11, 2009. Holden recorded no issues were reported regarding the roadway in any parts of the eleven mile construction zone. Holden related work was completed in the vicinity of milepost 24.2 in December 2008 and [t]he traffic pattern had not changed in any way since December 2008. Submitted photographs of the roadway area in question taken on March 6, 2009 and March 19, 2009 do not depict any defects around exit 22 (milepost 24.2). {¶ 5} Despite filing a response, plaintiff did not offer evidence to establish the length of time the pothole existed at milepost 24.2 on Interstate 75 South prior to 6:50 a.m. on March 11, 2009. Plaintiff insisted her vehicle struck a roadway defect that caused substantial property damage. {¶ 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 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 contention that DOT 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. {¶ 7} To prove a breach of the duty by defendant to maintain the highways plaintiff must establish, by a preponderance of the evidence, that DOT 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. Evidence has shown neither DOT nor Jurgensen had actual notice of the pothole. {¶ 8} Therefore, to find liability plaintiff must prove that DOT had constructive notice of the defect. 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. There is no indication defendant had constructive notice of the pothole. Plaintiff has not produced any evidence to infer 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. Size of the defect (pothole) 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. {¶ 9} Ordinarily in a claim involving roadway defects, plaintiff must prove either: 1) defendant had actual or constructive notice of the defective condition 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. However, proof of notice of a dangerous condition is not necessary when defendant s own agents actively cause such condition. See 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. Plaintiff has failed to produce sufficient evidence to prove that her property damage was caused by either DOT or Jurgensen. {¶ 10} 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. 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. {¶ 11} 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 DOT acted in a manner to render the highway free from an unreasonable risk of harm to 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 DOT to the traveling public both under normal traffic conditions and during highway construction projects. See e.g. White v. Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, 564 N.E. 2d 462; Rhodus, 67 Ohio App. 3d 723, 588 N.E. 2d 864; Feichtner, 114 Ohio App. 3d 346, 683 N.E. 2d 112. {¶ 12} In the instant claim, plaintiff has failed to introduce sufficient evidence to prove that defendant or its agents maintained a known hazardous roadway condition. Plaintiff has failed to prove that her property damage was connected to any conduct under the control of defendant, 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. 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 CINDY GORMAN Plaintiff v. OHIO DEPT. OF TRANSPORTATION Defendant Case No. 2009-03932-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: Cindy Gorman 2159 Woodsdale Road Trenton, Ohio 45067 RDK/laa 7/13 Filed 7/28/09 Sent to S.C. reporter 12/4/09 Jolene M. Molitoris, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43222

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