Opinion
2022-00742AD
03-31-2023
TONY WIGGINS Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant
Sent to S.C. Reporter 7/14/23
MEMORANDUM DECISION
{¶1} Tony Wiggins ("plaintiff) filed this claim against the defendant, Ohio Department of Transportation ("ODOT"), to recover damages which occurred when his 2019 Chevy Corvette struck a pothole on July 16, 2022, while traveling eastbound on Interstate Route ("IR") 70, between mile markers 98 to 99, in Franklin County, Ohio. This road is a public road maintained by ODOT. Plaintiffs vehicle sustained damages in the amount of $659.39. Plaintiff maintains a collision insurance deductible of $1,000.00 with Hartford. Plaintiff submitted the $25.00 filing fee with the form complaint.
{¶2} In order to recover on a claim for roadway damages against ODOT, Ohio law requires that a motorist/plaintiff prove all of the following: {¶3} That the plaintiffs motor vehicle received damages as a result of coming into contact with a dangerous condition on a road maintained by ODOT.
{¶4} That ODOT knew or should have known about the dangerous road condition.
{¶5} That ODOT, armed with this knowledge, failed to repair or remedy the dangerous condition in a reasonable time.
{¶6} In this claim, the court finds that the plaintiff did prove that his vehicle received damages and that those damages occurred as a result of the plaintiffs vehicle coming into contact with a dangerous condition on a road maintained by ODOT.
{¶7} Plaintiff must also prove that ODOT knew or should have known about the dangerous condition to succeed on this claim. See Denis v. Department of Transportation, 75-0287-AD (1976).
{¶8} For constructive notice to exist, a plaintiff must prove that sufficient time has passed after the dangerous condition first appears, so that under the circumstances ODOT should have gained knowledge of its existence. Guiher v. Dept. of Transportation, 78-0126-AD (1978); Gelarden v. Ohio Dept. of Transp., Dist. 4, Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
{¶9} The evidence in this case reveals that the area where plaintiff had his accident was a construction zone. ODOT had contracted with Kokosing Construction Company, Inc. to do certain construction work on IR 70 in Franklin County.
{¶10} In the Investigation Report, ODOT indicates that the incident involving plaintiffs vehicle occurred on IR 70 in Franklin County between state mile markers 98.0 and 99.0. The agency reiterates that this area was part of an ongoing construction project being undertaken by Kokosing Construction Company, Inc. The agency maintained that it was not aware of any potholes in the construction area immediately prior to plaintiffs accident.
{¶11} Plaintiff did not file a response to defendant's Investigation Report.
{¶12} Defendant has a duty to maintain its highways in a reasonable safe condition for the motoring public. Knickel v. Ohio Department of Transportation, 49 Ohio App.2d 335, 361 N.E.2d 486 (10th Dist. 1976). However, defendant is not an absolute insurer of the safety of its highways. See Kniskern v. Township of Somerford, 112 Ohio App.3d 189, 678 N.E.2d 273 (10th Dist. 1996); Rhodus v. Ohio Dept. of Transp., 67 Ohio App.3d 723, 588 N.E.2d 864 (10th Dist. 1990). Generally, a defendant is only liable for roadway conditions of which it has notice of but fails to correct. Bussard v. Dept. of Transp., 31 Ohio Misc.2d 1, 507 N.E.2d 1179 (Ct. of Cl. 1986).
{¶13} Defendant asserts that Kokosing Construction Company, Inc., by contractual agreement, was responsible for roadway damages, occurrences, or mishaps within the construction zone. Therefore, ODOT argues that Kokosing Construction Company, Inc. is the proper party defendant in this action.
{¶14} 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-159.
{¶15} In Gore v. Ohio Department of Transportation, 10th Dist. No. 02AP-996, 2003-Ohio-1648, the court held that "Work is inherently dangerous when it creates a peculiar risk of harm to others unless special precautions are taken." See Covington & Cincinnati Bridge Co. v. Steinbrock & Patrick, 61 Ohio St. 215, 55 N.E. 618, (1899) paragraph one of the syllabus; 2 Restatement of the Law 2d, Torts, Section 427; Prosser & Keeton at 512-513, Section 71. Under those circumstances, the employer hiring the independent contractor has a duty to see that the work is done with reasonable care and cannot, by hiring an independent contractor, insulate himself or herself from liability for injuries resulting to others from the negligence of the independent contractor or its employees. Covington at paragraph one of the syllabus.
{¶16} "To fall within the inherently-dangerous-work exception, it is not necessary that the work be such that it cannot be done without a risk of harm to others, or even that it be such that it involves a high risk of such harm. It is sufficient that the work involves a risk, recognizable in advance, of physical harm to others, which is inherent in the work itself." 2 Restatement of the Law 2d, Torts, at 416, Section 427, Comment b.
{¶17} "The inherently-dangerous-work exception does apply, however, when special risks are associated with the work such that a reasonable man would recognize the necessity of taking special precautions. The work must create a risk that is not a normal, routine matter of customary human activity, such as driving an automobile, but is rather a special danger to those in the vicinity arising out of the particular situation created and calling for special precautions. 2 Restatement of the Law 2d, Torts, at 385, Section 413, Comment b; Prosser & Keeton at 513-514, Section 71.' Id." Gore at ¶ 20, 21 & 23.
{¶18} Thus, defendant's claim that liability for any damages, occurrences, or mishaps is imputed to Kokosing Construction Company, Inc. is without merit as this court has already determined construction work is an inherently dangerous activity. However, in order for the plaintiff to prevail on a claim for damage to motor vehicles while traveling in a construction zone, the court may only pass judgment on whether the plaintiff has shown that ODOT breached its duty to the public in managing the contractor and ensuring the safety of the public within the construction zone. ODOT could be found negligent in this type of case only if it failed to properly manage the contractor by reasonably inspecting the construction site and the work performance of the contractor, or if the agency knew or should have known about the condition that damaged plaintiffs vehicle.
{¶19} As we consider whether ODOT breached its duty to the public in keeping the construction area safe, the court must take into account that this was an active construction zone. Ohio law is clear that ODOT cannot guarantee the same level of safety during a highway construction project as it can under normal traffic conditions. Feichtner v. Ohio Dept. of Transp., 114 Ohio App.3d 346, 354, 683 N.E.2d 112 (1995). The test is whether, under the totality of the circumstances, "ODOT acted sufficiently to render the highway reasonably safe for the traveling public during the construction project." Basilone v. Ohio Dept. of Transp., 1st Dist. No. 00AP-811, 2001 WL 118602 (Feb. 13, 2001) citing Feichtner, and Lumbermens Mut. Cas. Co. v. Ohio Dept. of Transp., 49 Ohio App.3d. 129, 551 N.E.2d 215 (1988).
{¶20} It should be noted that the damage-causing incident occurred in an active construction zone with workers present. Judge Sheeran in Floyd v. Ohio Department of Transportation, 2021-00156-AD (7-27-21) reversed jud (10-27-21) determined since members of the construction crew were present in the construction zone, "where the road hazard was located, they knew or should have known of its presence in the roadway. As a result, [the construction company] had constructive notice of the defect in the roadway, and because ODOT cannot delegate its duty to maintain roadways in a drivable condition, it was likewise on constructive notice…"
{¶21} In the case at bar, workers were also present in the construction zone where the pothole was situated. The duty of ODOT to maintain the roadway in a safe drivable condition is not delegable to an independent contractor charged with roadway construction. Clark v. ODOT, Ct. of Cl. No. 2019-01158-AD, 2021-Ohio-2996, ¶ 7. Therefore, even though the court finds that although defendant ODOT did not have actual notice, it had constructive notice of the pothole because of the presence of defendant's independent contractor on site of an active roadway construction project where the pothole was located. See Floyd.
{¶22} Therefore, judgment is rendered in favor of plaintiff in the amount of $659.39, plus $25.00 for reimbursement of the filing fee pursuant to the holding in Bailey v. Ohio Department of Rehabilitation and Correction, 62 Ohio Misc.2d 19, 587 N.E.2d 990 (Ct. of Cl. 1990).
ENTRY OF ADMINISTRATIVE DETERMINATION
{¶23} 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 $684.39, which includes the filing fee. Court costs are assessed against defendant.