[Cite as Gardner v. Ohio Dept. of Transp., 2011-Ohio-5571.]

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

JENNIFER GARDNER, Case No. 2011-04746-AD 

 Plaintiff, 

 v. Acting Clerk Daniel R. Borchert 

OHIO DEPARTMENT OF TRANSPORTATION, 

 Defendant. MEMORANDUM DECISION

{¶ 1} On March 14, 2011, at approximately 6:50 a.m., plaintiff, Jennifer Gardner, 

was traveling westbound on State Route 2 when she “struck a massive pothole” and 

damaged her passenger side front tire. Plaintiff asserted that the damage to her 

automobile was proximately caused by negligence on the part of defendant, Department 

of Transportation (DOT), in maintaining a hazardous roadway condition on SR 2 in a 

construction area. Plaintiff filed this complaint seeking to recover damages in the 

amount of $961.56, the cost of a replacement tire, wheel, and related repair expenses. 

The filing fee was paid. 

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

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

under the control of DOT contractor, Anthony Allega Cement Contractor/Great Lakes 

Construction (Allega). Defendant explained that the construction project “dealt with 

grading, draining, paving with asphalt concrete on an asphalt concrete base in part, 
paving with reinforced concrete paving in part, noise barrier, reinforced concrete 

retraining walls, MSE walls and rehabilitating existing structures between mileposts 3.32 

and 7.75 in Lake County.” Defendant asserted that this particular construction project 

was under the control of Allega and consequently, DOT had no responsibility for any 

damage or mishap on the roadway within the construction project limits. Defendant 

argued that Allega, by contractual agreement, was responsible for maintaining the 

roadway within the construction zone. Therefore, DOT reasoned that Allega 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 DOT or its contractors. All construction work was to be performed in accordance 

with DOT requirements and specifications and subject to DOT approval. Also, DOT 

personnel maintained an onsite inspection presence throughout the construction project 

limits. 

{¶ 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. 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. 

{¶ 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 DOT to maintain the roadway in a safe 

drivable condition is not delegable to 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. See Roadway Express, Inc. v. Ohio Dept. of Transp. (June 28, 

2001), Franklin App. 00AP-1119. 

{¶ 5} Defendant denied that either DOT or Allega had any knowledge of the 

particular damage-causing roadway defect plaintiff’s car struck. Defendant contended 

plaintiff failed to offer any evidence of negligent roadway maintenance on the part of 

ODOT. 
{¶ 6} Defendant submitted an email from Allega representative, Carmen 

Carbone, who explained that the “pothole occurred in the old existing pavement, not our 

new or replaced pavement as shown in the attached photos. The attached investigation 

and daily reports will demonstrate that the work zone had been reviewed every day prior 

to the occurrence. The attached work zone review reports document road repairs were 

made on Thursday March 10, 2011, and reviewed by ODOT.” Carbone noted that the 

road was inspected on March 11, 12, and 13, 2011, and that no potholes were found. 

Carbone explained that “sometime during the late night due to the weather conditions 

(see attached weather reports) there occurred some melting and freezing which caused 

the potholes to pop.” Carbone reiterated the DOT position that neither DOT nor Allega 

had any knowledge of the potholes prior to the morning of March 14, 2011. Carbone 

denied that the defect plaintiff’s car struck was caused by any direct act of Allega 

personnel. Plaintiff did not file a response. 

{¶ 7} 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 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 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, 42, 564 N.E. 2d 462. Defendant’s documents 

suggest that the areas previously patched on March 10, 2011 were located in the 

eastbound right lane of SR 2. 

{¶ 8} 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. 

{¶ 9} In this case, upon review, insufficient evidence has been produced to infer 

that the roadway was negligently maintained. Denis. The trier of fact notes one of the 

photographs submitted by defendant shows a large area of pavement deterioration 

which spans several feet in length and another depicts a large, circular patched area 

surrounded by severely cracked and uneven asphalt. A patch that deteriorates in less 

than ten days is prima facie evidence of negligent maintenance. See Matala v. Ohio 

Department of Transportation, 2003-01270-AD, 2003-Ohio-2618;Schrock v. Ohio Dept. 

of Transp., Ct. of Cl. No. 2005-02460-AD, 2005-Ohio-2479. 

{¶ 10} However, a pothole patch which may or may not have deteriorated over a 

longer time frame does not constitute, in and of itself, conclusive evidence of negligent 

maintenance. See Edwards v. Ohio Department of Transportation, District 8, Ct. of Cl. 

No. 2006-01343-AD, jud, 2006-Ohio-7173. Plaintiff has failed to prove when the 

pothole that damaged her car had been previously patched or that the patching material 

was subject to rapid deterioration. Plaintiff has not proven negligent maintenance by 

providing evidence of multiple repairs. 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 her 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-Ohio7162; Nicastro v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-09323-AD, 2008-Ohio4190. 
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 

JENNIFER GARDNER, Case No. 2011-04746-AD 

 Plaintiff, 

 v. Acting Clerk Daniel R. Borchert 

OHIO DEPARTMENT OF TRANSPORTATION, 

Defendant. 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 

 Acting Clerk 

Entry cc: 

Jennifer Gardner Jerry Wray, Director 

500 Trailwood Drive Department of Transportation 

Painesville, Ohio 44077 1980 West Broad Street 

 Columbus, Ohio 43223 

7/6 

Filed 7/19/11 
Sent to S.C. Reporter 10/27/11