Janoch v. Ohio Dept. of Transp.

[Cite as Janoch v. Ohio Dept. of Transp., 2010-Ohio-6629.]

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

KIM JANOCH

Plaintiff

v.

OHIO DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2010-07105-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

{¶ 1} Plaintiff, Kim Janoch, filed this action against defendant, Department of

Transportation (ODOT), contending her 1997 Chrysler Sebring that her minor son was

driving was totally damaged as a proximate cause of negligence on the part of ODOT in

maintaining a hazardous condition in a construction project area on State Route 43 in

Aurora, Ohio. Specifically, plaintiff related the front axle, ball joint, and tie rod end on

her car were damaged when the vehicle struck “a trench across the road at

approximately 181 N. Aurora Rd, Aurora, Ohio” that had apparently been dug by ODOT

contractor, Fabrizi Trucking and Paving Company, Inc. (Fabrizi). Plaintiff asserted that

Fabrizi, after digging the trench (actually a culvert replacement project) across the

roadway “failed to maintain it properly (and) [t]his allowed a hole to develop - 10 X 18-8

inches deep.” Plaintiff noted that when her car struck the roadway depression the axle

broke locking the steering wheel causing her son to have no control over the vehicle

resulting in the vehicle careening off the roadway approximately fifty feet until coming to

a stop in a ditch against a tree. Plaintiff recalled the described damage incident

occurred on March 12, 2010 (Friday) at approximately 7:20 a.m. Plaintiff related Fabrizi

was not working on the culvert replacement project on March 12, 2010 and after the

damage incident “[t]hey were notified immediately and called in workers to fill the hole,

posted signs, and put barrels beside the spot that had not been“ stationed there prior to

7:20 a.m. In her complaint, plaintiff requested damage recovery in the amount of

$2,500.00, the stated value of her 1997 Chrysler Sebring. The filing fee was paid.

{¶ 2} Defendant acknowledged that the roadway area where plaintiff’s property

damage incident occurred was within the limits of a working construction project under

the control of ODOT contractor, Fabrizi. Defendant advised the particular construction

project “dealt with widening, resurfacing, draining, signing and signalizing roadway on

SR 43 between milepost 23.59 and 25.74 in Portage County.” From plaintiff’s

description, defendant determined the described damage incident occurred “at milepost

23.90 on SR 43 in Portage County” which is located within the project limits. Defendant

asserted that this particular construction project was under the control of Fabrizi and

consequently ODOT had no responsibility for any damage or mishap on the roadway

within the construction project limits. Defendant argued that Fabrizi, by contractual

agreement, was responsible for maintaining the roadway within the construction zone.

Therefore, ODOT contended that Fabrizi 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 her 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.

{¶ 3} 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,¶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.

{¶ 4} 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.

{¶ 5} Alternatively, defendant denied that neither ODOT nor Fabrizi had any

notice “of the pavement on SR 43 prior to plaintiff’s incident.” Defendant explained “this

portion of SR 43 (covering milepost 23.90) has an average daily traffic volume of

between 9,110 and 11,100 however, no other complaints were received on this project

in this timeframe.” Defendant contended plaintiff failed to offer evidence to establish her

property damage was attributable to any conduct on either the part of ODOT or Fabrizi.

Defendant further contended plaintiff failed to produce any evidence to prove the

construction area was negligently maintained.

{¶ 6} 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.

{¶ 7} 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. In her complaint,

plaintiff argued the damage to her car was caused by roadway conditions created by

ODOT’s contractor. The trier of fact finds defendant has provided documentation to

support the contention that the damage causing condition was created by construction

activity.

{¶ 8} Defendant contended plaintiff did not prove her damage was caused by a

dangerous roadway condition attributable to construction work. Defendant submitted a

document purportedly from Fabrizi Project Superintendent, Chris Taylor, describing the

work performed at the culvert replacement site at milepost 23.90 on State Route 43.

The submitted document is reproduced in its entirety.

{¶ 9} “On March 2, 2010 an existing culvert @ Sta. 127+00 Lt. was removed as

per ODOT plans and specifications. The trench was backfilled and compacted with

#304 crushed gravel. The last inch of the trench was capped with asphalt cold mix as a

temporary repair throughout construction. At the end of the day on March 2nd it was

noticed that tire ruts were developing due to moisture and settling of the trench. At this

time it was determined to place a 1" thick steel road plate with asphalt cold mix over the

trench until it was settled and safe for the travelling public. Two signs were placed at

this location. One is advising PLATE ON ROAD and the other BUMP.

{¶ 10} “The road plate and signs were left in place until March 11, 2010. At this

time it was determined that the trench was safe for the travelling public. At the end of

the day, the plate and signs were removed and the trench was left in a safe condition.

{¶ 11} “On March 12, 2010 it was noticed that tire ruts started to develop

overnight and asphalt cold mix was added to the trench to make a smoother transition.

This was done at approximately 10:30 am. Later that afternoon a gentleman stopped in

the field office to advise Fabrizi and ODOT of an accident that had taken place that

morning at 7:30 am. He stated his son was on his way to school and hit a pot hole that

caused his axle to break which ultimately resulted in the driver losing control and going

off the roadway. The car was totaled and a claim was filed with Fabrizi.

{¶ 12} “Pictures were taken of the accident scene but no pictures were taken of

the pot hole due to the fact it was repaired before Fabrizi was aware that an accident

had occurred. The tire rutting (pot hole) was approximately 1" to 3" prior to the repair.

Additionally after reviewing the police report it was noticed that the tie rod on the driver

side was where the mechanical failure occurred. The rut/pot hole was on the passenger

side of the vehicle near the white edge line. Fabrizi made sure the trench was safe for

the weekend and have had no issues since.

{¶ 13} “The incident occurred within the construction zone. There are two

messages boards on each end of the project advising of the construction zone and also

ROAD CONSTRUCTION AHEAD/END ROAD WORK signs posted as per plans and

specifications. Furthermore there are ROUGH ROAD signs posted at various locations

throughout the project.”

{¶ 14} Defendant submitted photographs depicting the roadway area and

plaintiff’s automobile stopped in a wooded area off the right side of State Route 42

South. These photographs admittedly taken on March 12, 2010 do not depict any traffic

control, speed limit signage, or any other advisory signage in place along the roadway.

Defendant submitted other photographs depicting the culvert replacement site after the

defective condition had been repaired and traffic control barrels were in place. Still

another submitted photograph depicts traffic control at the “entrance into area” in the

form of barrels and a “Rough Road” sign. An additional photograph of the area taken

after the March 12, 2010 damage incident depicts traffic control barrels, a “Road

Construction Ahead” sign, and a “35 MPH Zone Ahead” sign.

{¶ 15} Defendant submitted a copy of a “Traffic Crash Report” compiled shortly

after the incident forming the basis of this claim. According to information in the “Traffic

Crash Report” the posted speed on State Route 43 at the time was 45 mph and

plaintiff’s car was traveling 45 mph when the damage event occurred. Also, this “Traffic

Crash Report” designates the only traffic control on this particular section of roadway at

the time was “pavement markings.”

{¶ 16} Defendant may bear liability if it can be established if some act or

omission on the part of ODOT or its agents was the proximate cause of plaintiff’s injury.

This court, as the 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.

{¶ 17} “If any injury is the nature and probable consequence of a negligent act

and it is such as should have been foreseen in the light of all the attending

circumstances, the injury is then the proximate result of the negligence. It is sufficient

that his act is likely to result in an injury to someone.” Cascone v. Herb Kay Co. (1983),

6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber Co. v. First

National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E. 327.

Evidence available tends to point out the damage to plaintiff’s vehicle was caused by

roadway conditions originally created by defendant’s agents.

{¶ 18} Generally, in order to recover in a suit involving damage proximately

caused by roadway conditions including construction defects, plaintiff must prove that

either: 1) defendant had actual or constructive notice of the defect 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 insufficient evidence ODOT or Fabrizi had

actual notice that the defective condition had reformed prior to plaintiff’s incident at 7:20

a.m. on March 12, 2010. Therefore, in order to recover on a notice rationale, plaintiff

must produce evidence to prove constructive notice of the defect.

{¶ 19} “[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 at 4.

{¶ 20} Generally, 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.

{¶ 21} 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 . Ordinarily size of a 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. However, the massive size of a defect coupled

with the knowledge that the defect presented a recurring problem is sufficient to prove

constructive notice. Fite v. Ohio Dept. of Transp., Ct. of Cl. No. 2009-05757-AD, 2009-

Ohio-7124.

{¶ 22} Additionally, plaintiff has produced evidence to infer that defendant

maintains the roadway negligently. Denis. Plaintiff’s evidence submitted shows that the

particular damage-causing defect was formed within ten days of the original

construction activity. This fact constitutes sufficient evidence of negligent maintenance

when coupled with the fact no traffic control was in place at the time of the incident and

no reduced speed signs were positioned at the site. Consequently, defendant is liable

to plaintiff for the damage claimed $2,500.00, plus the $25.00 filing fee which may be

awarded as compensable costs pursuant to R.C. 2335.19. Bailey v. Ohio Department

of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.

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

KIM JANOCH

Plaintiff

v.

OHIO DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2010-07105-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 plaintiff in the amount of $2,525.00, which includes the filing fee. Court costs are

assessed against defendant.

DANIEL R. BORCHERT

Deputy Clerk

Entry cc:

Kim Janoch Jolene M. Molitoris, Director

1231 Bryce Avenue Department of Transportation

Aurora, Ohio 44202 1980 West Broad Street

Columbus, Ohio 43223

RDK/laa

9/30

Filed 10/13/10

Sent to S.C. reporter 1/21/11