Sent to S.C. Reporter 6/21/23
ENTRY RE-OPENING CASE AND MEMORANDUM DECISION
{¶1} Susan Davis ("plaintiff") filed this claim against the defendant, Ohio Department of Transportation ("ODOT"), to recover damages which occurred when her 2018 Volvo S60 struck a pothole on July 13, 2022, while traveling southbound on Interstate Route ("IR") 77, near exit 124A for Archwood/Firestone Boulevard, in Summit County, Ohio. This road is a public road maintained by ODOT. Plaintiffs vehicle sustained damages in the amount of $646.00. Plaintiff also incurred a towing expense of $69.00 for a total damage claim of $715.00. Plaintiff submitted the $25.00 filing fee with the form complaint.
{¶2} On December 16, 2022, ODOT filed an Investigation Report stating that this incident occurred in an active construction zone.
{¶3} Accordingly, on January 25, 2023, this court issued an entry directing plaintiff to submit her automobile insurance policy's deductible page on or before February 8, 2023, or face dismissal of her case.
{¶4} On February 10, 2023, this court issued an entry dismissing plaintiffs case, without prejudice, based on her failure to comply with this court's entry of January 25, 2023.
{¶5} On February 17, 2023, plaintiff submitted her automobile insurance deductible page. Accordingly, since plaintiff has now complied with this court's entries, plaintiff's claim shall be RE-OPENED.
{¶6} The evidence in this case reveals that the area where plaintiff had her accident was a construction zone. ODOT had contracted with The Ruhlin Company/Shelly & Sands Inc. to do certain construction work on IR 77 in Summit County.
{¶7} In the Investigation Report, ODOT indicates that the incident involving plaintiffs vehicle occurred on IR 77 in Summit County at state mile marker 124.18 (county mile marker 10.66). The agency reiterates that this area was part of an ongoing construction project being undertaken by The Ruhlin Company/Shelly & Sands Inc. The agency maintained that it was not aware of any potholes in the construction area immediately prior to plaintiffs accident.
{¶8} Plaintiff did not file a response to defendant's Investigation Report.
{¶9} 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).
{¶10} Defendant asserts that The Ruhlin Company/Shelly & Sands Inc., by contractual agreement, was responsible for roadway damages, occurrences, or mishaps within the construction zone. Therefore, ODOT argues that The Ruhlin Company/Shelly & Sands Inc. is the proper party defendant in this action.
{¶11} 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.
{¶12} 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.
{¶13} "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.
{¶14} "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.
{¶15} Thus, defendant's claim that liability for any damages, occurrences, or mishaps is imputed to The Ruhlin Company/Shelly & Sands 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.
{¶16} 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, 1 st 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).
{¶17} 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 Ruhlin Company/Shelly & Sands Inc. 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…"
{¶18} 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.
{¶19} R.C. 2743.02(D) in pertinent part states:
"Recoveries against the state shall be reduced by the aggregate of insurance proceeds, disability award, or other collateral recovery that the claimant receives or is entitled to."
{¶20} Therefore, judgment is rendered in favor of plaintiff in the amount of $500.00, 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
{¶21} 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 $525.00, which includes reimbursement of the filing fee. Court costs are assessed against defendant.