Miller v. State

[Cite as Miller v. State, 2014-Ohio-3738.]
IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Dennis D. Miller, Individually and as :
Administrator of the Estate of
Pauline J. Miller, deceased, :

Plaintiff-Appellee, :

v. : No. 13AP-849
(Ct. of Cl. No. 2009-07679)
State of Ohio, :
(REGULAR CALENDAR)
Defendant-Appellee, :

The Ohio Department of Transportation, :

Defendant-Appellant. :

D E C I S I O N

Rendered on August 28, 2014

Nurenberg, Paris, Heller & McCarthy Co., L.P.A., Jamie R.
Lebovitz, Ellen M. McCarthy and Kathleen J. St. John, for
appellee Dennis D. Miller.

Michael DeWine, Attorney General, William C. Becker and
Emily M. Simmons, for appellant.

APPEAL from the Court of Claims of Ohio

O'GRADY, J.

{¶ 1} Defendant-appellant, Ohio Department of Transportation ("ODOT"),
appeals from the judgment of the Court of Claims of Ohio in favor of plaintiff-appellee,
Dennis D. Miller ("appellee"), individually and as administrator of the estate of Pauline J.
Miller ("Miller"). For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This case involves what can be described as either a large pothole or series
of potholes on State Route ("S.R.") 165. Appellee filed a complaint against the state of
No. 13AP-849 2

Ohio and ODOT alleging on March 11, 2008,1 his wife, Miller, was traveling northbound
on S.R. 165 in Columbiana County, Ohio. At the same time, Joseph Goscenski, Jr., was
operating a truck in the southbound lane and hit one or more potholes which caused him
to lose control of his truck, cross the centerline, and strike Miller's vehicle, resulting in her
death. Appellee claimed the state, through ODOT, negligently failed to repair the potholes
and alleged a claim for Miller's wrongful death.2 The Court of Claims bifurcated the issues
of liability and damages for trial and ordered the matter be tried with a separate action
filed against the state by Goscenski and others.3 A summary of the pertinent testimony
from the trials follows.
{¶ 3} During the liability trial, Goscenski testified he had over 30 years experience
driving trucks. On March 9 and 10, he worked 12.5 and 11.5 hours respectively and began
work around 3:00 a.m. On March 11, he started work at 1:00 a.m. Goscenski testified his
work schedule complied with federal law. Although Goscenski typically drove a tractor-
trailer, on March 11 he drove a straight truck; however, he had driven a straight truck
before. Goscenski testified a straight truck is easier to drive than a tractor-trailer because
it has a less complicated gear shift. He did a pre-trip inspection of the truck, including the
tires, which had no observable defects. The truck had one tire on each side of the front
end and two tires, i.e., "duals," on each side of the rear end. (Dec. 6, 2010 Tr. 82.) Two
weeks before the accident, the truck got brand new front tires.
{¶ 4} On March 11, Goscenski made a delivery in Cleveland and departed between
4:30 and 4:45 a.m. for Pittsburgh. He testified that around 6:45 a.m., he was 3.5 miles
from the Pennsylvania border, traveling southbound on S.R. 165 in a 55 m.p.h. zone. He
ascended a hill at 45 to 50 m.p.h., and as he crested the hill at 50 m.p.h. he could not see
any potholes ahead. Within seconds, he heard a big bang and the truck went left of

1 Unless otherwise stated, all dates in this decision will refer to 2008.

2Appellee also alleged a survival claim for conscious pain and suffering Miller experienced before her death
but effectively abandoned this claim by not requesting such damages during or after the damages trial and
presenting no evidence of such damages.

3 In the separate action, the Court of Claims granted ODOT judgment on the pleadings with regard to an
indemnification claim. Thus, the liability trial for purposes of that action focused on a claim of ODOT's
negligence. After the liability trial but before the damages trial, the parties entered into a settlement
agreement which resulted in a dismissal of the negligence claim. We recently issued a decision in an appeal
from the judgment on the pleadings in Goscenski v. Ohio Dept. of Transp., 10th Dist. No. 13AP-585, 2014-
Ohio-3426.
No. 13AP-849 3

center. Goscenski thought he blew a tire. He hit the brakes, unsuccessfully tried to steer
the truck back to the right, and then braced himself for impact with Miller's vehicle. After
the accident, Goscenski learned he did not blow a tire and was certain he struck the
potholes on S.R. 165, which caused him to lose control of the truck. On cross-
examination, Goscenski testified he held onto the steering wheel after he struck the
potholes. When confronted with his deposition to the contrary, Goscenski testified the
wheel may have been torn from his hands but he could not remember. At trial, Goscenski
also could not recall if he honked his horn before impact. However, at his deposition, he
testified to honking it.
{¶ 5} The day of the accident, Goscenski had a doctor's appointment at 8:30 a.m.
This factored into his choice to take S.R. 165, a faster route he had not used in
approximately six months. Goscenski admitted he was in a hurry "to a point" because he
wanted to get to the appointment. (Dec. 6, 2010 Tr. 93.) However, if the accident had not
occurred at 6:45 a.m., he would have returned the truck at 7:30 a.m. and had plenty of
time to travel ten more miles to the doctor's office without driving carelessly. In his
written statement to the Ohio State Highway Patrol ("OSHP"), Goscenski said the
accident happened at 7:18 a.m.
{¶ 6} Retired Trooper Timothy Jones ("Trooper Jones"), a former crash
investigator and reconstructionist with OSHP, investigated the accident while on active
duty. He took measurements, spoke to Goscenski, and helped author an accident report.
OSHP's scale diagram of the scene depicts two potholes on the right-hand side of the
southbound lane of S.R. 165. The first pothole is 17.79 feet long, and the second is 10.67
feet long. The OSHP report notes: "Pavement in poor condition due to large pot holes at
the scene. Large pot hole measured and found to be 5 inches in depth with a width of 24
inches into the southbound lane. The south end was not gradual but abrupt and near
straight down." (Joint exhibit No. 1.) Trooper Jones explained hitting the south end of
this pothole would be "basically like hitting a curb." (Dec. 6, 2010 Tr. 126.)
{¶ 7} No one from OSHP reconstructed the accident, but Trooper Jones did not
feel that was necessary. Trooper Jones believed Goscenski hit a pothole and was not
speeding. On the OSHP report, Trooper Jones listed Goscenski's failure to control as a
contributing factor to the accident. However, Trooper Jones admitted his investigation
No. 13AP-849 4

did not reveal any possible cause for the accident aside from Goscenski striking the
pothole. Goscenski tested negative for alcohol use.
{¶ 8} John Rieseck, a friend of the Millers' son, testified that he used to live on
S.R. 165 and saw the ambulance and both disabled vehicles the morning of the accident.
Rieseck testified he struck potholes at the scene about two or three weeks earlier, causing
his steering wheel to jerk hard and his vehicle to go left of center. The potholes were in
the southbound lane, after the crest of a hill, and visible for "a split second or two before
you actually hit them." (Rieseck Depo. 34.) He reported the potholes to ODOT soon after
he struck them but could not recall exactly when or if he spoke to a man or woman.
Rieseck observed other cars hit the potholes and "kick" to the left. (Rieseck Depo. 37.)
Rieseck testified that between his incident with the potholes and the accident, the
potholes grew in size.
{¶ 9} Although appellee did not produce any evidence ODOT or OSHP received
calls about S.R. 165 in the weeks before the accident, Becky Giauque, an employee at
ODOT's District 11 office, which encompasses Columbiana County, testified ODOT has no
set policy for logging roadway complaints from the public. When asked if it was likely a
complaint to District 11 about a pothole would go unrecorded, Giauque testified she could
not say, and it depended on who took the complaint. But at her deposition, Giauque
testified it was quite likely complaints went unrecorded. Sandra Rafferty, an OSHP
dispatcher, testified OSHP does not require dispatchers to document road hazard
complaints, and in her experience not all calls get recorded.
{¶ 10} Harold Lipp testified he has lived at the corner of S.R. 165 and Heck Road
since 1954. He did not know Miller or her family. About three to four weeks before the
accident, he saw potholes in the southbound lane of S.R. 165. The potholes deteriorated
over time, and Lipp drove down the center of the road to avoid them. The Sunday before
the accident, i.e., March 9, Lipp drove to church and saw a lot of snow on S.R. 165. By the
time he drove home, S.R. 165 had been plowed. He surmised the state plowed that day
because ODOT trucks were the only ones he ever observed plow S.R. 165. Lipp thought
the plow hit the potholes because he saw a "perfect imprint" of a plow blade in the snow
bank next to them. (June 2, 2011 Tr. Vol. II, 198.) Lipp did not report the potholes
believing they would be repaired now that an ODOT plow struck them. Lipp testified a
No. 13AP-849 5

photograph of the potholes taken after the accident fairly and accurately depicted their
condition on March 9. On March 11, Lipp observed the accident scene from his property.
{¶ 11} Joseph Filippino, a civil engineer, reviewed photographs of the potholes and
opined portions of the potholes had been patched before. He also opined that the
potholes took longer than 24 hours to develop and began as many as 5 weeks before the
accident.
{¶ 12} Barry Miner testified he was ODOT's county manager for Columbiana
County in 2008. His duties included inspecting county roadways, which he typically did 3
to 4 hours per day, to make decisions about when to schedule work crews and how to
prioritize projects. Miner inspected S.R. 165 on March 6 and saw "first layer" potholes
approximately 2 inches deep, 12 inches long, and 8 inches wide. (June 1, 2011 Tr. Vol. I,
139.) Miner thought the potholes did not require immediate repair but still intended to
have them fixed. However, he did not document the number, location, or size of the
potholes or have them patched prior to the accident. Miner admitted ODOT had
designated S.R. 165 as a poor performing road.
{¶ 13} According to Miner, ODOT is responsible for 650 miles of roadway in
Columbiana County, and the section of S.R. 165 at issue contains about 3 of those miles.
Records indicate ODOT engaged in pothole patching in Columbiana County on March 6
and 7. Miner testified on March 7, his workforce also engaged in snow and ice control
anticipating 8 inches of snow that evening. The county received more than 8 inches, so
the workforce engaged in additional snow and ice control on March 8 and 9. Miner
testified his workforce could not patch potholes when they were in snow and ice control
mode. On March 10, crews engaged in snow and ice control along with pothole patching.
Miner testified "[b]ased upon allocated man hours if I have an eight-inch snowstorm,
which we had, * * * snow and ice for that weekend would have taken precedence [over
repairing pavement defects]." (June 1, 2011 Tr. Vol. I, 146.)
{¶ 14} David Ray, a civil engineer and ODOT's state maintenance engineer,
examined ODOT's operations in Columbiana County in the days before the accident. He
observed in the 7 days before the accident, ODOT engaged in snow and ice operations and
pothole patching all over the county. Patching occurred at 20 different routes, and 14 of
No. 13AP-849 6

the routes had higher traffic than S.R. 165, leading Ray to believe crews were patching
roads with more traffic during that time frame.
{¶ 15} Henry Lipian, a crash reconstructionist, opined that the front right tire of
Goscenski's truck contacted the potholes. The potholes were in the traveled part of the
roadway, so there was a high probability a commercial vehicle with a wider wheel track
would contact them. The potholes were asymmetrical, and the end of one pothole was
deep with an edge like a vertical cliff face. If a tire hit the end of this pothole, it would
cause a hard jerk to the right side of the vehicle and a force would transmit through the
steering wheel. According to Lipian, photographs of the accident scene depicted a
commercial tire imprint in one of the potholes. Lipian inspected the truck in October
2010 and testified the imprint in the pothole was very consistent with the tread design of
the truck's front right tire. Also, the tire had unusual distress marks which indicated a
strong, isolated, concentrated force had been applied to it, consistent with it striking an
abrupt, sharp edge.
{¶ 16} Lipian opined the truck went left of center at an angle and contacted Miller's
vehicle at an angle; the truck did not drift left of center. The collision damage and final
resting place of the vehicles supported this conclusion. In Lipian's opinion, the potholes,
given their depth and shape, were capable of causing Goscenski to lose control of his truck
at his stated speed of 50 m.p.h. A driver would likely lose control above 42.56 m.p.h.
Lipian also opined that, in light of the hill and other conditions, Goscenski did not have
enough time to perceive and react to the potholes to avoid hitting them.
{¶ 17} In addition, Lipian opined that, based on his experience, both vehicles were
traveling at or about the speed limit. However, there were too many unknown variables to
calculate speed with reasonable accuracy. To determine pre-impact speed, one must
know the post-impact speed. However, Lipian could not determine if Goscenski braked
after impact. Additional factors complicating a speed calculation were the fact that during
impact, the front of the truck was off the ground and on top of the car for a period of time,
and post-impact one of the truck's tires may have come off the ground due to uneven
terrain. Also, the complex topography of the land over which the truck traveled made it
difficult to calculate speed. Lipian testified the truck striking the potholes before impact
would not have led to yaw marks on the roadway or caused the truck to roll over.
No. 13AP-849 7

{¶ 18} Timothy Tuttle, ODOT's accident reconstructionist, opined Goscenski never
struck the potholes and this case was a "classic head-on collision," with an impact that
occurred entirely within the northbound lane of S.R. 165. (June 3, 2011 Tr. Vol. III, 639.)
Tuttle testified if the impact occurred at an angle, damage to the front of the truck would
have been in a wedge or angle shape, but it was not. He testified that if the truck struck
the pothole and went left of center, there should have been yaw marks on the road, and
even going 50 m.p.h., the truck should have rolled over. Tuttle also testified that the tire
imprint in the potholes was completely different from the tires on the truck. Tuttle
calculated Goscenski's pre-impact speed to be 64 m.p.h.
{¶ 19} After the liability trial, the magistrate recommended the Court of Claims
enter judgment in favor of appellee on the issue of liability. The magistrate found
Goscenski's testimony that he lost control of his truck because he struck the potholes
credible and found the testimony of Lipian more persuasive than that of Tuttle. The
magistrate found ODOT had actual notice of the potholes on S.R. 165 on March 6, but the
potholes were not of the same magnitude as the potholes that existed on March 11.
However, the magistrate found the potholes that existed on March 6 deteriorated and by
March 9, ODOT had constructive notice they had become unreasonably dangerous to the
traveling public and required immediate repair. ODOT breached its duty to Miller and
the traveling public to maintain highways in a reasonably safe condition by not repairing
the potholes before March 11. The magistrate found ODOT's failure to repair the potholes
was the sole proximate cause of the injuries in this case and rejected ODOT's request for
apportionment of fault between it and Goscenski under R.C. 2307.22.
{¶ 20} The Court of Claims adopted the magistrate's decision on the last day the
parties had to file objections. Then, ODOT timely filed objections to the magistrate's
findings, operating as an automatic stay of execution of the judgment until the Court of
Claims disposed of the objections. Civ.R. 53(D)(4)(e)(i). In its objections, ODOT argued
it was entitled to immunity,4 it did not breach a duty because it lacked actual or
constructive notice of the potholes, the potholes did not proximately cause the accident,
and if the potholes did contribute to the accident, some liability should be apportioned to

4 ODOT raised the issue of immunity in its amended answer but not in its post-trial briefs, which is

presumably why the magistrate did not address it.
No. 13AP-849 8

Goscenski. Appellee also filed objections to certain aspects of the magistrate's findings.
The Court of Claims overruled the objections and adhered to the judgment it previously
rendered adopting the magistrate's decision.
{¶ 21} During the damages trial, appellee testified Miller was in extremely good
health at the time of her death. She worked full-time as a clinical nurse specialist at a
hospital and part-time as a teacher. Appellee believed Miller would work until she
physically could not because she loved what she did and retirement "was not in her
vocabulary." (Jan. 23, 2013 Tr. 46.) Appellee thought Miller would work until at least age
70. Miller enjoyed educating and interacting with people. Her work was not a burden to
her. In addition, Mary Ann Turjanica, one of Miller's co-workers, testified she worked
with Miller as a clinical nurse specialist for about four years. Nursing was Miller's life; she
was a "nurse at heart" and loved teaching. (Jan. 23, 2013 Tr. 92.) When asked if it would
be fair to say Miller had a life-long goal of educating in the nursing field, Turjanica
responded in the affirmative and stated, "I think she would have gone as long as she
possibly could." (Jan. 23, 2013 Tr. 97.)
{¶ 22} Economist John Burke, Ph.D., testified regarding Miller's expected earning
capacity and the value of her household services. Dr. Burke explained four factors
determine expected earning capacity: (1) how long the person works before retirement,
(2) the person's wages, including fringe benefits, (3) future wages and fringe benefits, and
(4) the interest rate, which is used to determine the present value of future earnings, i.e.,
the amount of money needed today to replace future earnings. Miller was 48.9 years old
at the time of her death, and her statistical life expectancy was 82.7 years old. Dr. Burke
testified the United States Department of Labor ("DOL") compiles statistics on work-life
expectancy which indicates a female Miller's age would work until age 59.3. However, Dr.
Burke computed Miller's earning capacity using three other retirement ages: 66 years and
10 months (Social Security retirement age), 70 years, and 75 years. To calculate what
Miller would have earned from 2009 to 2012, Dr. Burke utilized the Employment Cost
Index ("ECI") produced by the DOL. He also testified to his methodology for forecasting
Miller's income after 2012 and the interest rates he used.
{¶ 23} Regarding lost services, Dr. Burke testified the American Time Use Study
produced by the DOL provides the time an average person performs household services
No. 13AP-849 9

depending on sex, number of children in the home, and outside employment status.
According to the study, a female employed outside the home with no children at home on
average performs 2.55 hours of household work each day. After retirement, the same
female on average performs 3.74 hours of household work each day. Using these figures,
Dr. Burke presented calculations of three possible scenarios for replacing Miller's services
until the end of appellee's statistical life expectancy (which was shorter than Miller's
statistical life expectancy). First, he calculated the cost of paying someone minimum wage
to perform this work. Second, he calculated the cost of paying someone $15 per hour for
this work. Third, he calculated the cost of having a live-in housekeeper.
{¶ 24} After the damages trial, the Court of Claims rendered judgment in favor of
appellee for $3,343,025. This figure included damages for loss of support and services.
The court acknowledged Miller's statistical work-life expectancy of 59.3 years. However,
the court was convinced she would have continued to work at both of her jobs until age 66
years and 10 months, Social Security retirement age. The court found the greater weight
of evidence demonstrated she was a dedicated employee with no intention of leaving the
workforce at age 59.3. The court found the testimony of appellee and Turjanica to this
effect persuasive. The court found it unlikely Miller would work through age 70 or 75
given her demanding work schedule. The court also found Dr. Burke reliably testified
about his methodology to determine expected earning capacity and awarded $1,300,000
for loss of support based on his calculations. Regarding loss of services, the court
awarded $243,000 based on Dr. Burke's calculations for a minimum wage cost of
replacement.
{¶ 25} After the Columbiana County Probate Court adjusted the shares of Miller's
beneficiaries, the Court of Claims deducted collateral benefits received by each beneficiary
from his or her share of the award. Following the deduction for collateral sources, the
Court of Claims reduced the total judgment to $1,820,942.04.
II. ASSIGNMENTS OF ERROR
{¶ 26} ODOT appeals and presents five assignments of error for our review:
[I.] ODOT'S DECISION THAT A POTHOLE DOES NOT
NEED TO BE REPAIRED IMMEDIATELY WHEN
PERFORMING SNOW AND ICE REMOVAL FOLLOWING A
WINTER STORM IS ONE THAT ENTITLES IT TO
DISCRETIONARY IMMUNITY.
No. 13AP-849 10

[II.] ODOT DID NOT BREACH ANY DUTY OWED TO
PLAINTIFF-APPELLEE INASMUCH AS ODOT HAD NO
ACTUAL OR CONSTRUCTIVE NOTICE OF THE POTHOLE
IN QUESTION.

[III.] THIS ACCIDENT WAS UNFORESEEABLE.

[IV.] THE TRIAL COURT ERRED IN HOLDING THAT THE
POTHOLE IN QUESTION PROXIMATELY CAUSED THIS
ACCIDENT AND FAILING TO APPORTION THE LIABILITY
OF THE TRUCK DRIVER WHO WAS SPEEDING, IN A
HURRY, LOST CONTROL, AND WENT LEFT-OF-CENTER
CAUSING THE ACCIDENT IN THIS CASE.

[V.] THERE WAS NO ECONOMIC CERTAINTY TO
PLAINTIFF-APPELLEE'S ALLEGED ECONOMIC DAMAGES
WHICH WERE BASED ON ECONOMIC FIGURES THAT
VARIED AS WILDLY AS $1 MILLION DOLLARS,
PROJECTED LOST WAGES BEYOND WORK LIFE
EXPECTANCY, AND INCLUDED WAGE INCREASES THAT
WERE ARBITRARILY INFLATED AND NOT PROPERLY
DISCOUNTED TO PRESENT DAY DOLLARS.

III. DISCUSSION
A. Immunity
{¶ 27} Under its first assignment of error, ODOT contends the Court of Claims
erred when it found ODOT was not entitled to immunity in this case.
{¶ 28} Article I, Section 16, of the Ohio Constitution provides: "Suits may be
brought against the state, in such courts and in such manner, as may be provided by law."
The legislature created the Court of Claims, vesting it with "exclusive, original jurisdiction
of all civil actions against the state permitted by the waiver of immunity contained
in section 2743.02 of the Revised Code." R.C. 2743.03(A)(1). Under R.C. 2743.02(A)(1),
the state waives its immunity, with certain exceptions, and consents to be sued and "have
its liability determined, in the court of claims * * * in accordance with the same rules of
law applicable to suits between private parties." The "state's consent to be sued * * *
preserved the state's immunity 'for its legislative or judicial functions, or the exercise of an
executive or planning function involving the making of a basic policy decision which is
characterized by the exercise of a high degree of official judgment or discretion.' "
Semadeni v. Ohio Dept. of Transp., 75 Ohio St.3d 128, 132 (1996), quoting Reynolds v.
No. 13AP-849 11

State, 14 Ohio St.3d 68 (1984), paragraph one of the syllabus. "Those functions are not
engaged in by private parties." Id. However, "once such a basic policy decision has been
made, and the state has determined to engage in a certain activity or function, 'the state
may be held liable, in the same manner as private parties, for the negligence of the actions
of its employees and agents in the performance of such activities.' " Id., quoting Reynolds
at paragraph one of the syllabus.
{¶ 29} The Supreme Court of Ohio has recognized that "setting a timetable for
implementation of a discretionary decision itself involves the exercise of judgment."
Garland v. Ohio Dept. of Transp., 48 Ohio St.3d 10, 12 (1990). However, "an agency may
not delay implementation indefinitely." Id. Thus,"[o]nce a governmental entity has made
a discretionary decision, it has a reasonable amount of time to implement that decision
without incurring tort liability." Id. at paragraph two of the syllabus. The availability of
governmental immunity presents a question of law we review de novo. See Conley v.
Shearer, 64 Ohio St.3d 284, 292 (1992); Bush v. Beggrow, 10th Dist. No. 03AP-1238,
2005-Ohio-2426, ¶ 15; Ohio Am. Health Care, Inc. v. Ohio Bd. of Nursing, 10th Dist. No.
13AP-1020, 2014-Ohio-2422, ¶ 13.
{¶ 30} Here, the Court of Claims found ODOT was not immune because it had
constructive notice of the potholes and a reasonable amount of time to remedy them.
However, the issue of constructive notice primarily relates to whether ODOT breached a
duty to Miller. See Kemer v. Ohio Dept. of Transp., 10th Dist. No. 09AP-248, 2009-Ohio-
5714, ¶ 31 (finding ODOT did not breach duty of care to plaintiffs, in part, because it
lacked actual or constructive notice of open catch basin into which plaintiff fell).
Nonetheless, as we explain below, we agree immunity is not available to ODOT in this
case. See generally Reid v. Plainsboro Partners, III, 10th Dist. No. 09AP-442, 2010-
Ohio-4373, ¶ 20 (stating "an appellate court need not reverse an otherwise correct
judgment merely because the trial court utilized different or erroneous reasons as the
basis for its determination").
{¶ 31} ODOT contends its decision to not immediately repair a pothole when
performing snow and ice removal following a winter storm is a discretionary decision that
entitles it to immunity. ODOT emphasizes the fact that it has 650 miles of roadway to
maintain in Columbiana County. According to ODOT, its decision on how to best utilize
No. 13AP-849 12

its resources is a policy decision entitling it to immunity. In the case ODOT quotes for this
proposition, the Court of Claims found "ODOT's decision as to whether to implement a
particular program, or how to best utilize its resources to maintain * * * catch basins" was
entitled to immunity. Townsend v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-11044,
2011-Ohio-3875, ¶ 27. However, this case does not involve catch basins, and, in any
event, Townsend is not binding on this court.
{¶ 32} "Were we to find that discretionary immunity applies every time a state
employee exercises discretion in performing his or her job, we would be vastly expanding
the scope of the discretionary immunity doctrine while simultaneously limiting the scope
of the state's waiver of sovereign immunity from liability as established by the Court of
Claims Act." Foster v. Dept. of Rehab. & Corr., 10th Dist. No. 12AP-503, 2013-Ohio-912,
¶ 23. As appellee points out, a finding that ODOT is entitled to immunity for the existence
of a road hazard simply because road maintenance involves choices about how to allocate
resources like equipment and personnel would eviscerate the state's general duty to
maintain its highways in a reasonably safe condition for the traveling public. See Sparre
v. Ohio Dept. of Transp., 10th Dist. No. 12AP-381, 2013-Ohio-4153, ¶ 9, citing Knickel v.
Dept. of Transp., 49 Ohio App.2d 335 (10th Dist.1976).
{¶ 33} In the context of political subdivision immunity for failure to maintain road
signs, the Supreme Court of Ohio has stated: "Overhanging branches and foliage which
obscure traffic signs, malfunctioning traffic signals, signs which have lost their capacity to
reflect, or even physical impediments such as potholes, are easily discoverable, and the
elimination of such hazards involves no discretion, policy-making or engineering
judgment. The political subdivision has the responsibility to abate them and it will not be
immune from liability for its failure to do so." Franks v. Lopez, 69 Ohio St.3d 345, 349
(1994). Additionally, this court has found ODOT's decision to expand a state route was a
discretionary decision under Reynolds but maintenance of the route was a "ministerial
function for which the state may be held liable for its negligence." Burns v. Ohio Dept. of
Transp., 39 Ohio App.3d 126 (10th Dist.1987), paragraph one of the syllabus. See also
Malone v. Chillicothe, 4th Dist. No. 05CA2869, 2006-Ohio-3268, ¶ 27 (finding city's
decision regarding sewer repair was not a discretionary decision entitled to immunity
No. 13AP-849 13

under R.C. 2744.03(A)(5)5 because city had "a duty to properly maintain its sewers and
cannot shirk its duty by claiming that the decision to properly maintain the sewers
involved discretion in allocating limited financial resources and personnel").
{¶ 34} In contrast, in Garland, the Supreme Court of Ohio addressed whether
ODOT's decision as to what type of traffic control device to install at an intersection was
entitled to immunity. The court explained it previously held in Winwood v. Dayton, 37
Ohio St.3d 282 (1988), "that a municipality's decision whether to install a traffic control
signal deserves the protection of sovereign immunity because such a decision requires the
exercise of independent judgment and consideration of a number of factors." (Emphasis
deleted.) Garland at 12; see Winwood at 284 (specifying those factors included "the
regulation of traffic patterns and traffic flow at the specific location and in surrounding
areas, fiscal priorities, safety, and various engineering considerations"). The Garland
court found "[t]he same is true of an ODOT decision as to what type of traffic control
device to install at a particular intersection, a decision that requires the same kind of
expert evaluation." (Emphasis sic.) Id. at 12.
{¶ 35} The record is devoid of any evidence that ODOT must make a similarly
complex evaluation every time it decides when to fill a pothole. But more importantly, in
this case, ODOT did not demonstrate its failure to repair the potholes at issue involved the
exercise of an executive or planning function involving the making of a basic policy
decision characterized by the exercise of a high degree of official judgment or discretion.
Reynolds. Miner testified the potholes he observed on March 6 did not require
immediate repair but he intended to have them fixed. However, he did not record any
information about the potholes, and there is no evidence he scheduled S.R. 165 for repairs
before the accident. ODOT argues it was busy with snow and ice control before the
accident and patching potholes, primarily on routes with more traffic than S.R. 165.
ODOT even hired auxiliary crews to assist with this work. Also, Ray testified to his belief
that "in a general sense" crews were patching routes with more traffic than S.R. 165 before
the accident. (June 3, 2011 Tr. Vol. III, 730.)

5 R.C. 2744.03(A)(5) provides political subdivisions with immunity "from liability if the injury, death, or loss
to person or property resulted from the exercise of judgment or discretion in determining whether to
acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the
judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless
manner."
No. 13AP-849 14

{¶ 36} Nonetheless, no one from ODOT testified about if or how the patched routes
were actually selected for priority over S.R. 165. Not all of the patched routes were busier
than S.R. 165. Moreover, Miner testified factors such as a pothole's size and location on
the roadway, i.e., in the wheel track or not, impact whether it is a hazard. It stands to
reason factors other than traffic volume would impact a decision on how to prioritize
routes for pothole patching. Thus, we find it difficult to conclude the delay in repairs
occurred because ODOT exercised a high degree of official judgment or discretion in
deciding to dedicate its limited resources and personnel to more pressing road hazards as
opposed to inattentiveness.
{¶ 37} ODOT suggests the decision Miner made on March 6 that the potholes
needed fixed was itself a discretionary decision, and ODOT had a reasonable time to
implement that decision under Garland without incurring liability. However, we fail to
see why the determination that 2 inch deep, 12 inch long, and 8 inch wide potholes should
be filled qualifies as a discretionary decision entitled to immunity under the Reynolds
standard.
{¶ 38} Finally, ODOT claims the magistrate found ODOT had constructive notice
of the potholes that existed on March 11 because Miner saw smaller potholes on March 6
and ODOT knows potholes are unpredictable. ODOT contends this finding is "in direct
contravention of the doctrine of discretionary immunity" and imposes strict liability on it.
(Appellant's Brief, 13.) However, ODOT misunderstands the basis for its constructive
notice in this case, which we discuss in more detail below.
{¶ 39} For the foregoing reasons, we conclude ODOT was not entitled to immunity
and overrule the first assignment of error.
B. Negligence
{¶ 40} " 'To maintain an action for damages for wrongful death upon the theory of
negligence, a plaintiff must show (1) the existence of a duty owing to plaintiff's decedent,
i.e., the duty to exercise ordinary care, (2) a breach of that duty, and (3) proximate
causation between the breach of duty and the death.' " Galay v. Ohio Dept. of Transp.,
10th Dist. No. 05AP-383, 2006-Ohio-4113, ¶ 7, quoting Bennison v. Stillpass Transit Co.,
5 Ohio St.2d 122 (1966), paragraph one of the syllabus.
No. 13AP-849 15

1. Duty and Breach
{¶ 41} " 'Whether a duty exists in a negligence action is a question of law.' "
Kemer at ¶ 16, quoting Benton v. Cracker Barrel Old Country Store, Inc., 10th Dist. No.
02AP-1211, 2003-Ohio-2890, ¶ 11. The state has a general duty to maintain its highways
in a reasonably safe condition for the traveling public. Sparre at ¶ 9. ODOT does not
dispute it had such a duty to Miller as a member of the traveling public. However, ODOT
maintains it did not breach its duty.
{¶ 42} Whether the defendant breached a duty is normally a question of fact for the
trier of fact to decide. Kemer at ¶ 16. The state "is not an insurer of the safety of travelers
on its highways." Sparre at ¶ 9, citing Rhodus v. Ohio Dept. of Transp., 67 Ohio App.3d
723 (10th Dist.1990). Therefore, ODOT is not liable for damages caused by hazards on
state highways unless ODOT had actual or constructive notice of the hazard and failed to
remedy it. Id. at ¶ 9, citing McClellan v. Ohio Dept. of Transp., 34 Ohio App.3d 247, 249
(10th Dist.1986); see Kemer at ¶ 20.
{¶ 43} Under its second assignment of error, ODOT contends the Court of Claims'
finding that ODOT had constructive notice of the potholes at issue is against the manifest
weight of the evidence. Weight of the evidence concerns " ' "the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather than
the other. * * * Weight is not a question of mathematics, but depends on [the evidence's]
effect in inducing belief." ' " (Emphasis deleted.) Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997),
quoting Black's Law Dictionary 1594 (6th Ed.1990). "Thus, in reviewing a judgment
under the manifest-weight standard, a court of appeals weighs the evidence and all
reasonable inferences, considers the credibility of witnesses, and determines whether, in
resolving conflicts in the evidence, the finder of fact clearly lost its way." Brown v. Dept.
of Rehab. & Corr., 10th Dist. No. 13AP-804, 2014-Ohio-1810, ¶ 19, citing Eastley at ¶ 20.
{¶ 44} In applying the manifest weight standard, "the court of appeals 'must
always be mindful of the presumption in favor of the finder of fact.' " Id., quoting Eastley
at ¶ 21. "A trial court's findings of fact are presumed correct, and 'the weight to be given
the evidence and the credibility of the witnesses are primarily for the trier of fact to
decide.' " Rex v. Univ. of Cincinnati College of Medicine, 10th Dist. No. 13AP-397, 2013-
No. 13AP-849 16

Ohio-5110, ¶ 18, quoting Eagle Land Title Agency, Inc. v. Affiliated Mtge. Co., 10th Dist.
No. 95APG12-1617 (June 27, 1996).
{¶ 45} "Actual notice exists when the relevant information has been permanently
communicated to or received by the noticed party in the form of express or direct
information." Sparre at ¶ 23, citing Lucero v. Ohio Dept. of Rehab. & Corr., 10th Dist.
No. 11AP-288, 2011-Ohio-6388. " 'Constructive notice is that notice which the law
regards as sufficient to give notice and is regarded as a substitute for actual notice.' " Id.,
quoting Hughes v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-1052, 2010-Ohio-
4736, ¶ 14. "To support an inference of constructive notice, a plaintiff may submit
evidence to establish the length of time that a condition existed, and thereby show that the
defendant should have acquired knowledge of its existence." Id.; see also Presley v.
Norwood, 36 Ohio St.2d 29, 32 (1973), quoting Johnson v. Wagner Provision Co., 141
Ohio St. 584 (1943) (stating to support an inference of constructive notice, there must be
evidence "sufficient to indicate that a dangerous condition has '* * * existed for a sufficient
time reasonably to justify the inference that the failure to warn against it or remove it was
attributable to a want of ordinary care.' "); Kemer at ¶ 24 ("Constructive notice of a
defective condition can be imputed to a defendant when the plaintiff presents evidence
establishing that the defect could or should have been discovered."). "The requisite length
of time a condition must exist to establish constructive notice varies with each specific
situation." Id. at ¶ 25, citing Danko v. Ohio Dept. of Transp., 10th Dist. No. 92AP-1183
(Feb. 4, 1993).
{¶ 46} ODOT disagrees with the finding that by March 9 it had constructive notice
of the condition the potholes were in at the time of the accident. First, ODOT suggests the
potholes present on March 11 were not the same potholes Miner saw on March 6.
According to ODOT, Ray testified potholes of this nature could "literally occur within
hours." (Appellant's Brief, 23.) ODOT does not provide a citation to the record for this
testimony, and we found no such testimony in our review of the transcript. Also, even
though Miner failed to document the precise location of the potholes he saw, Rieseck and
Lipp observed potholes in the relevant portion of S.R. 165 even before March 6. ODOT
argues Rieseck lacks credibility for various reasons, such as his friendship with the
Millers' son and his inability to recall some details of his call to ODOT. However, Lipp
No. 13AP-849 17

had no connection to Miller, and ODOT fails to explain its allegation that Lipp's testimony
was "emotionally-charged." (Appellant's Brief, 20.) ODOT also complains Filippino's
opinion about when the potholes developed is unreliable. However, it does not appear the
magistrate or Court of Claims placed much weight on his testimony. In any event, his
opinion that the potholes took more than one day to develop is corroborated by the
eyewitness testimonies of Lipp and Rieseck. In addition, contrary to ODOT's suggestion,
the absence of documented complaints to ODOT and OSHP about a five-inch deep
pothole on S.R. 165 before the accident does not prove the potholes developed overnight.
Based on the testimony of Rafferty and Giauque, it is questionable whether ODOT or
OSHP would have recorded such calls even if they were made.
{¶ 47} Appellee presented evidence, in part through Lipp's testimony, that ODOT
plowed S.R. 165 on March 9 and by that time the potholes had deteriorated to the same
condition they were in during the accident. ODOT contends Lipp's testimony that it
plowed S.R. 165 on March 9 is speculative. However, it is undisputed ODOT is
responsible for plowing S.R. 165 and engaged in plowing operations in Columbiana
County on March 9. Lipp testified S.R. 165 was not plowed when he went to church on
March 9, but by the time he came home S.R. 165 was plowed. Moreover, Lipp testified in
the over 50 years he lived on S.R. 165, he never observed anyone plow S.R. 165 except for
ODOT. Thus, it is reasonable to infer ODOT plowed S.R. 165 on March 9.
{¶ 48} ODOT contends Lipp could not reliably testify the potholes he saw on
March 9 were the same size and shape as the potholes present on March 11. ODOT argues
on March 9, Lipp did not stop and measure the potholes and was distracted by the
imprint in the snow bank. ODOT also argues on March 11 Lipp viewed the potholes from
25 yards away. However, ODOT only speculates Lipp was too distracted to observe the
condition of the potholes on March 9, and Lipp's failure to measure the potholes does not
make his testimony so unreliable that the Court of Claims could not credit it. The fact that
Lipp observed the potholes from 25 yards away on March 11 is not pertinent because, at
trial, Lipp testified a photograph of the potholes taken after the accident fairly and
accurately depicted their condition on March 9. The Court of Claims was free to believe
this testimony. Although ODOT suggests Lipp might have lied about the potholes in light
of his failure to report them to a government agency, Lipp reasonably explained he
No. 13AP-849 18

thought this was unnecessary. Lipp thought an ODOT plow struck the potholes and went
into a snow bank on March 9, so the problem would be fixed.
{¶ 49} Next, ODOT claims even if it plowed S.R. 165 on March 9 and the potholes
were already in the condition they were in during the accident, it is still unreasonable to
infer ODOT could have learned about the potholes that day. ODOT contends Lipp only
speculated its plow struck the potholes based on the imprint in the snow bank and
"[a]nyone with a pick-up truck could have left a plow imprint in the snow." (Appellant's
Brief, 20.) ODOT also argues there is no evidence the plow driver could have seen or felt
the potholes given the heavy snowfall. Even putting aside Lipp's opinion that the plow
struck the potholes, the potholes were still in the traveled part of the roadway, covered an
area over 27 feet long and up to 24 inches wide, and were visible to Lipp on March 9,
presumably after S.R. 165 had been plowed. We find no error in the conclusion that
ODOT could or should have discovered these potholes on March 9 and had sufficient time
to remedy the hazard before the March 11 accident. See generally Pompignano v. Ohio
Dept. of Transp., Ct. of Cl. No. 2005-02117-AD, 2005-Ohio-3976, ¶ 8 (finding ODOT had
constructive notice of pothole that formed more than 12 hours prior to plaintiff's property
damage event).
{¶ 50} Because the constructive notice finding was not against the manifest weight
of the evidence, we overrule the second assignment of error.
2. Foreseeability
{¶ 51} Under its third assignment of error, ODOT contends the accident was
unforeseeable. However, ODOT does not argue it was unforeseeable the potholes could
cause an accident, but, instead, reiterates many points it made with regard to immunity
and its priorities in the days leading up to the accident. ODOT also argues it properly
maintained S.R. 165 as evidenced by records of pothole patching it performed in the
months before the accident. It is unclear how these arguments relate to the assigned
error. In addition, ODOT argues it could not have foreseen development of potholes of
the magnitude that existed on March 11 and cannot be liable absent "direct notice" of
those potholes. (Appellant's Brief, 25.) However, regardless of whether ODOT could have
predicted that the March 6 potholes would deteriorate to the condition they existed in at
the time of the accident, ODOT still had constructive notice on March 9 of potholes on
No. 13AP-849 19

S.R. 165 in the same condition as they existed at the time of the accident. ODOT failed to
repair those potholes before the accident. ODOT's inability to foresee the evolution of the
March 6 potholes does not somehow excuse that failure.
{¶ 52} Accordingly, we overrule the third assignment of error.
3. Proximate Cause
{¶ 53} Under its fourth assignment of error, ODOT contends the Court of Claims'
findings regarding proximate cause were against the manifest weight of the evidence.
Specifically, ODOT contends Goscenski did not strike the potholes, so ODOT's failure to
repair them did not proximately cause the accident. ODOT argues that, even if its conduct
was a proximate cause of the accident, the Court of Claims should have apportioned some
liability to Goscenski, who was also a proximate cause of the accident because he was
speeding, in a hurry, lost control, and went left of center.
{¶ 54} Whether a breach proximately caused an injury is normally a question of
fact for the trier of fact to decide. Kemer at ¶ 16. "If an injury is the natural and probable
consequence of the alleged negligent act, then that act is the proximate cause of the
injury." Taylor v. Dept. of Rehab. & Corr., 10th Dist. No. 11AP-1156, 2012-Ohio-4792,
¶ 22, citing Sutowski v. Eli Lilly & Co., 82 Ohio St.3d 347, 351 (1998). "To find that an
injury was the natural and probable cause of an alleged negligent act, it must appear that
the injury complained of could have been foreseen or reasonably anticipated from the
act." Id., citing Strother v. Hutchinson, 67 Ohio St.2d 282, 287 (1981). " 'There may be
more than one proximate cause of an injury.' " Id., quoting Taylor v. Webster, 12 Ohio
St.2d 53, 57 (1967).
{¶ 55} ODOT maintains Goscenski did not hit the potholes, and his conduct was
the sole proximate cause of the accident. ODOT claims the only evidence Goscenski hit
the potholes is his own testimony, which is not credible. However, Trooper Jones'
investigation did not reveal any possible cause for the accident other than Goscenski
striking a pothole. Moreover, Lipian opined the truck struck the potholes, and, as we
explain below, the Court of Claims was free to credit the testimony of Goscenski and
accept Lipian's opinion over that of Tuttle.
{¶ 56} ODOT contends Tuttle performed the only full accident reconstruction in
this case whereas Lipian did not calculate the truck's speed or perform calculations to
No. 13AP-849 20

support his claims about the truck's path of travel. However, Lipian testified too many
unknown variables existed to perform a full reconstruction that included items like an
accurate speed calculation. The Court of Claims was free to credit this testimony and
disregard the speed calculation by Tuttle. ODOT also argues Lipian's testimony that the
truck hit the potholes and went completely left of center to strike Miller's vehicle head-on
in 1.3 seconds is not credible. ODOT suggests Lipian testified the truck was entirely
within the northbound lane when it struck Miller's vehicle. However, Lipian opined the
impact occurred at an angle. Moreover, ODOT fails to explain why it is not plausible that
the truck hit the potholes and struck Miller's vehicle 1.3 seconds later.
{¶ 57} In addition, ODOT contends Lipian is not reliable because he used the
wrong manufacturer, make, and model for the truck in his first expert report. However,
Lipian explained the registration information for the truck mistakenly identified it as a
2000 Freightliner. When Lipian inspected the truck, he learned it was a 1999
International. The only impact this information had on Lipian's work was to slightly alter
the dimensions of the truck on his scale drawing of the accident scene.
{¶ 58} ODOT also argues Lipian is not reliable because he failed a national test for
accident reconstruction experts the first time he took it. ODOT refers to a test Lipian took
through the Accreditation Commission for Traffic Reconstruction ("ACTAR"). Lipian
testified a person could be a qualified reconstructionist without ACTAR accreditation, and
it took him two tries to pass one portion of the test. We fail to see why this required the
Court of Claims to disregard Lipian's opinions.
{¶ 59} Next, ODOT argues the truck did not hit the potholes as evidenced by the
fact that the tires remained inflated post-accident and did not sustain significant rim
damage. However, Lipian testified the front right tire had distress marks consistent with
striking an abrupt, sharp edge, and one of the potholes had an edge like a vertical cliff
face. ODOT claims Tuttle showed the tread mark in the potholes differed from the truck
tires in this case. However, the Court of Claims was free to credit Lipian's testimony that
the tread mark was consistent with the truck's front right tire. ODOT emphasizes the
absence of yaw marks at the scene and failure of the truck to roll over, but the Court of
Claims was free to credit Lipian's testimony that impact with the potholes would not have
produced those results. In addition, ODOT complains "[n]o explanation was offered as to
No. 13AP-849 21

why the truck driver would have lost control if only his front right tire hit the pothole
while his dual rear wheels [rode] over it." (Appellant's Brief, 31.) However, Lipian
explained that if a tire hit the end of the pothole with a steep ending, there would be a
hard jerk to the right side of the vehicle and a force would transmit through the steering
wheel, causing the driver to lose control of the vehicle.
{¶ 60} ODOT argues Goscenski had a motive to lie to avoid responsibility for the
accident. ODOT suggests Goscenski is not credible because Lipian questioned whether
Goscenski was wearing a seatbelt at the time of the accident as he claimed. However,
Lipian could not say with certainty whether Goscenski was wearing a seat belt. ODOT
argues Goscenski gave inconsistent testimony about whether striking the potholes
knocked the steering wheel out of his hands. Also, ODOT argues that at trial, when asked
whether he hit his horn, Goscenski testified, "No. I don't believe I - - I may have. I'm not
sure." (Dec. 6, 2010 Tr. 98.) ODOT contends Goscenski said he was not sure after
realizing he was going to be impeached. Aside from the speculative nature of this
argument, the Court of Claims was aware of these issues with Goscenski's testimony,
which are relatively minor, and still chose to believe him.
{¶ 61} ODOT also argues that Goscenski testified the accident occurred at 6:45
a.m., even though he told OSHP it was 7:18 a.m., to give the impression he had enough
time to get to his doctor's appointment without speeding. ODOT claims if the accident
was at 7:18 a.m., Goscenski would have been late if he drove the speed limit because he
was 45 minutes away from the truck depot and then had to travel 10 additional miles to
the doctor's office. But using that time frame, Goscenski would have arrived at the depot
by 8:03 a.m., and we fail to see why it is implausible that he could have traveled an
additional 10 miles in 27 minutes in the absence of any information about the route he
planned to take from the depot to the doctor's office. The Court of Claims was free to
believe Goscenski's testimony that he was not speeding. This testimony was bolstered by
that of both Trooper Jones and Lipian.
{¶ 62} Next, ODOT contends Goscenski is not credible because his sequence of
events is improbable. Specifically, ODOT argues he testified 20 seconds elapsed between
hitting the potholes and Miller's vehicle, and 45 seconds elapsed between hitting the
potholes and the truck stopping. ODOT does not explain why this is implausible, and, in
No. 13AP-849 22

any event, it is understandable Goscenski would have a skewed perception of time during
a presumably traumatic experience.
{¶ 63} For these reasons, the Court of Claims' finding that Goscenski struck the
potholes and thus ODOT's failure to repair the potholes proximately caused the accident
was not against the manifest weight of the evidence.
{¶ 64} Next, ODOT contends even if its failure to repair the potholes proximately
caused the accident, the Court of Claims should have apportioned some liability to
Goscenski under R.C. 2307.23. R.C. 2307.23(A)(2) provides that in certain tort actions,
the court in a nonjury action shall make findings of fact specifying the "percentage of
tortious conduct that proximately caused the injury or loss to person or property or the
wrongful death that is attributable to each person from whom the plaintiff does not seek
recovery in this action." R.C. 2307.23(C) states: "For purposes of division (A)(2) of this
section, it is an affirmative defense for each party to the tort action from whom the
plaintiff seeks recovery in this action that a specific percentage of the tortious conduct that
proximately caused the injury or loss to person or property or the wrongful death is
attributable to one or more persons from whom the plaintiff does not seek recovery in this
action." It is " 'well settled in Ohio that the defendant asserting an affirmative defense has
the burden of proof in establishing such defense.' " Olentangy Condo. Assn. v. Lusk, 10th
Dist. No. 09AP-568, 2010-Ohio-1023, ¶ 23, quoting MatchMaker Internatl., Inc. v. Long,
100 Ohio App.3d 406, 408 (9th Dist.1995).
{¶ 65} As we already indicated, the Court of Claims was free to believe Goscenski's
testimony that he was not speeding. The Court of Claims was also free to disregard
Tuttle's speed calculation, particularly in light of the court's determination that contrary
to Tuttle's testimony, the truck did contact the potholes. Moreover, Lipian opined a driver
in a vehicle striking the potholes would likely lose control above 42.56 m.p.h.—well below
the posted speed limit. ODOT suggests the accident occurred because Goscenski was
tired from working long and unusual hours and driving an unfamiliar truck on a route he
had not traveled in months. However, Goscenski was an experienced truck driver and
gave uncontradicted testimony his work schedule complied with federal law. Regardless
of how frequently Goscenski drove on S.R. 165, Goscenski testified he could not see the
potholes before striking them. Rieseck confirmed the potholes were only visible a second
No. 13AP-849 23

or two before a driver encountered them. Also, Lipian opined given the hill and other
conditions, Goscenski did not have time to perceive the potholes and react to avoid hitting
them.
{¶ 66} ODOT points to no evidence of what Goscenski could have done to avoid the
potholes or striking Miller's vehicle once his right front tire hit the potholes. ODOT's
expert gave no opinion on this issue given his position that Goscenski never struck the
potholes.6 Although Trooper Jones listed Goscenski's failure to control as a contributing
factor to the accident on the OSHP report, the report indicates Trooper Jones did not
charge him with any offense. Moreover, Trooper Jones did not testify about what, if
anything, Goscenski could have done to control the truck. Trooper Jones admitted his
investigation did not reveal any possible cause for the accident aside from Goscenski
striking the pothole. Therefore, the Court of Claims' finding that ODOT did not prove its
apportionment defense was not against the manifest weight of the evidence.
{¶ 67} Our recent decision in Goscenski v. Ohio Dept. of Transp., 10th Dist. No.
13AP-585, 2014-Ohio-3426, is not inconsistent with this result. That appeal stemmed
from the Court of Claims' judgment in the separate action which was tried with the
present matter during the liability phase of proceedings. In Goscenski, the plaintiffs, who
included Goscenski, appealed the Court of Claims' decision to grant ODOT judgment on
the pleadings with regard to their claim for indemnification from ODOT. Id. at ¶ 1, 4. In
their complaint, the plaintiffs alleged ODOT's negligence proximately caused Miller's
damages and "their liability to Miller was 'merely secondary and passive as compared to
the active and primary negligence and liability of ODOT.' " Id. at ¶ 3. The plaintiffs
sought indemnification from ODOT "for all sums they paid to Miller." Id.
{¶ 68} In affirming the Court of Claims' decision, we explained that "[t]o have a
right to indemnity under the active/passive negligence theory, a party must be passively
negligent." Id. at ¶ 22, citing Lingo v. Ohio Cent. R.R., Inc., 10th Dist. No. 05AP-206,
2006-Ohio-2268, ¶ 37. We further explained:

6 In the conclusion of its brief, ODOT complains the evidence does not indicate why the truck went left

instead of right after striking the potholes. ODOT did not incorporate this contention into the argument
section of its brief. Moreover, we do not believe the absence of specific evidence on this point renders the
Court of Claims' ruling on proximate cause against the manifest weight of the evidence. We note Rieseck
testified contact with the potholes caused his and other vehicles to move left.
No. 13AP-849 24

Here, as alleged in the complaint, Goscenski's negligence
constituted driving over the centerline. This was an
affirmative act, not a failure to act where a duty to act existed.
Goscenski, therefore, was actively negligent. Consequently,
plaintiffs are not entitled to indemnification under the
active/passive negligence theory.

Id. at ¶ 23.
{¶ 69} This court did not actually find Goscenski was negligent because he drove
over the centerline. That issue was not before us. Instead, our review was limited to the
allegations in the pleadings. Id. at ¶ 8. Therefore, we had to disregard the factual findings
the Court of Claims made after the liability trial. Id. The focus of our decision was the fact
that in the complaint, Goscenski's alleged negligent act was an affirmative act, not a
passive one. Therefore, even construing the material allegations in the complaint in favor
of the plaintiffs, the plaintiffs could prove no set of facts that would support a claim for
indemnification under the active/passive negligence theory. Id. at ¶ 7, 25.
{¶ 70} Even though Goscenski was a plaintiff in the Goscenski case, and the
complaint alleged his own negligence, that fact does not impact our apportionment
analysis in this case. Our review of the assigned error is limited to evidence adduced at
the liability trial, which does not include allegations made in the pleadings in Goscenski.
{¶ 71} Accordingly, we overrule the fourth assignment of error.
C. Economic Damages
{¶ 72} Under its fifth assignment of error, ODOT contends the Court of Claims'
award for economic damages, i.e., loss of support and services, was against the manifest
weight of the evidence for reasons we elaborate on below.
{¶ 73} R.C. 2125.02(A)(2) provides:
The jury, or the court if the civil action for wrongful death is
not tried to a jury, may award damages authorized by division
(B) of this section, as it determines are proportioned to the
injury and loss resulting to the beneficiaries described in
division (A)(1) of this section by reason of the wrongful death
* * *.
No. 13AP-849 25

{¶ 74} R.C. 2125.02(B) states:

Compensatory damages may be awarded in a civil action for
wrongful death and may include damages for the following:

(1) Loss of support from the reasonably expected earning
capacity of the decedent;

(2) Loss of services of the decedent[.]

"In determining the amount of damages to be awarded, the jury or court may consider all
factors existing at the time of the decedent's death that are relevant to a determination of
the damages suffered by reason of the wrongful death." R.C. 2125.02(A)(3)(b)(i).
{¶ 75} First, ODOT claims Dr. Burke is biased based on his admission that the
majority of times he has been approached to "conduct this sort of analysis," it was by
plaintiffs. (Appellant's Brief, 34.) However, the fact that more plaintiffs than defendants
have approached Dr. Burke does not prove he is biased in favor of plaintiffs. ODOT
argues Dr. Burke's bias is evidenced by his disagreement with personal consumption
deductions, i.e., reducing a decedent's future earnings to account for money the decedent
would have consumed if she had lived. However, despite his personal beliefs, Dr. Burke
testified he made a deduction for personal consumption in the case because state law
required he do so.
{¶ 76} Next, ODOT complains Dr. Burke worked for the law firm appellee hired
more than 100 times and gave the firm a $900 price break in this matter but could not
explain why. In addition, Dr. Burke was paid $1,200 for up to two hours of testimony in
this case. However, the Court of Claims was aware of Dr. Burke's history and fees but still
chose to credit several of his calculations. We cannot say these issues made Dr. Burke so
unreliable the court erred in doing so.
{¶ 77} In addition, ODOT contends Dr. Burke improperly calculated Miller's
expected earnings beyond her statistical work-life expectancy. ODOT complains it is
unlikely Miller would have kept up her demanding two-job work schedule after age 59.3,
particularly given all of the unforeseeable events that can remove a person from the
workforce, such as layoffs. ODOT contends the DOL statistics account for these events
and takes issue with the fact Dr. Burke acknowledged usefulness of the DOL statistics, but
at the request of appellee's counsel, calculated Miller's earning capacity using older
No. 13AP-849 26

retirement ages. ODOT argues there is no way to say with certainty that Miller would
have continued to work at her two jobs as she did at the time of the accident until age 67,
70 or 75 "as Dr. Burke projected." (Appellant's Brief, 40.)
{¶ 78} However, Dr. Burke did not testify Miller would have worked until the
retirement ages he used in his calculations. He simply provided the court with earnings
calculations using different retirement ages. True, he did not calculate earnings for a
retirement age of 59.3. However, the Court of Claims found Miller would have retired at
66 years and 10 months based on the testimony of appellee and Turjanica, not the
testimony of Dr. Burke. "Predictions about future-earning capacity are necessarily
somewhat speculative." Adae v. State, 10th Dist. No. 12AP-406, 2013-Ohio-23, ¶ 39,
citing Andler v. Clear Channel Broadcasting, Inc., 670 F.3d 717, 726 (6th Cir.2012), citing
Eastman v. Stanley Works, 180 Ohio App.3d 844, 2009-Ohio-634 (10th Dist.). "An exact
calculation of what the plaintiff could have earned but for her injury is not required; the
plaintiff must prove damages with reasonable certainty." Id., citing Andler at 726,
Eastman at ¶ 24.
{¶ 79} "When calculating earning capacity, experts often consult actuarial tables,
Bureau of Labor Statistics figures or other averages along with the plaintiff's historical
earnings." Id., citing Andler at 728, and Taylor v. Freedom Arms, Inc., 5th Dist. No.
CT2008-0071, 2009-Ohio-6091, ¶ 16. However, ODOT directs this court to no authority
in support of its suggestion that the Court of Claims had to rely on the statistical work life
expectancy calculated by the DOL in determining damages for loss of support. Again,
"[i]n determining the amount of damages to be awarded, the * * * court may consider all
factors existing at the time of the decedent's death that are relevant to a determination of
the damages suffered by reason of the wrongful death." R.C. 2125.02(A)(3)(b)(i). Here,
appellee presented evidence of Miller's good health and the pleasure she took in her work.
The court considered this evidence, along with Miller's demanding work schedule, in
determining she would have worked beyond her statistical work life expectancy but not
after Social Security retirement age.
{¶ 80} Next, ODOT contends Dr. Burke's method of calculating Miller's future
earnings was unreliable. Specifically, ODOT challenges Dr. Burke's use of the ECI to
project Miller's wages from the time of death to the present. ODOT argues the salaries of
No. 13AP-849 27

three of Miller's co-workers who performed the same job as her were available to show
what she would have actually earned during this time frame. ODOT also complains in
calculating future wages, Dr. Burke only used the last three years of Miller's earnings
instead of looking at her earnings since she entered the workforce in 1977.
{¶ 81} However, Dr. Burke testified he was unaware Miller had three co-workers in
the same position as her. There is no evidence of what these co-workers earned or how
they compared to Miller in terms of experience. Their earnings could have exceeded those
Dr. Burke projected. Moreover, we cannot say Dr. Burke's reliance on the ECI, and the
Court of Claims' acceptance of this methodology, is improper simply because Dr. Burke
could have used a different method. Additionally, ODOT provides no explanation for why
Dr. Burke's use of Miller's last three years of earnings was improper. It seems logical as
Miller gained experience in the workforce, her earnings would grow to reflect that
experience and would more closely match her earnings at the time of death than her
earnings in the 1970s.
{¶ 82} In addition, ODOT argues Dr. Burke used speculative interest rates in his
calculations. Specifically, ODOT complains in his first report, Dr. Burke used projections
the United States Department of the Treasury (the "Treasury") made for interest rates in
the next 30 years. However, in his second and third reports, ODOT claims Dr. Burke
"took one day from the past, looked at the interest rate on treasury bills on that day, and
used that interest rate to project forward his 20 to 30 years of earnings." (Appellant's
Brief, 41.) ODOT contends the day Dr. Burke picked was one when interest rates were at
historic lows due to an economic crisis in the United States. ODOT suggests Dr. Burke
picked this day to increase the damages award in this case.
{¶ 83} However, Dr. Burke explained the interest rates he used in all of his reports
came from the Treasury. The rates from the Treasury in his first report were nominal
rates, i.e., they did not account for inflation, so Dr. Burke had to perform his own inflation
calculations. Since that time, the Treasury started providing real interest rates, i.e., rates
that consider inflation, so in subsequent reports Dr. Burke did not have to do those
calculations. Dr. Burke testified interest rates fell between the creation of his first and
third reports. In compiling his most recent report in September 2012, he used interest
rates he retrieved from the Treasury's daily real yield curve rates on September 4, 2012.
No. 13AP-849 28

He looked at the interest rates for investments in short and long-term Treasury
instruments that day; he did not make a personal prediction about future interest rates.
Based on the record before us, we cannot say this method is inherently unsound or that
the rates Dr. Burke used were too speculative. Moreover, nothing in the record supports
ODOT's contention Dr. Burke used the rates from September 4, 2012 because they were
historically low as opposed to him using the most recent rates available when he updated
his report in September 2012.
{¶ 84} Next, ODOT contends Dr. Burke arbitrarily determined Miller provided four
hours of household services each day. ODOT contends there is no evidence to this effect,
and it is unreasonable to believe Miller provided four hours of services per day while
working two jobs. However, Dr. Burke did not testify, and the Court of Claims did not
find, that Miller provided four hours of household services each day. Rather, Dr. Burke
explained that in his calculations, he used a DOL study on average hours of household
work. Specifically, he used the study's averages of 2.55 hours per day pre-retirement and
3.74 hours per day post-retirement. The study comports with ODOT's suggestion that
employed people have less time for household work than retired or unemployed people.
{¶ 85} ODOT also complains Dr. Burke's lost services calculations for a live-in
housekeeper and a housekeeper paid $15 per hour use arbitrary hourly wage figures.
However, the Court of Claims did not rely on these calculations and instead used Dr.
Burke's minimum wage calculation. ODOT suggests that if the minimum wage
calculation were correct, there would be no reason for Dr. Burke to provide the other
calculations he did. We fail to see how the mere fact that Dr. Burke provided the court
with calculations of different ways appellee could replace lost services renders Dr. Burke's
opinions unreliable. The Court of Claims considered the possibilities and chose the least
expensive replacement option. Additionally, we disagree with ODOT's suggestion that
appellee was not entitled to the value of Miller's lost services simply because he had not
hired household help since Miller's death.
{¶ 86} Finally, ODOT argues the Court of Claims could not rely on Dr. Burke's
testimony because he prepared three reports in this case, and each report contains
calculations for three different scenarios for lost earnings and household services. ODOT
complains Dr. Burke's calculations vary so much that they lack credibility. Dr. Burke
No. 13AP-849 29

explained he revised his 2009 report in 2010 and again in 2012 to account for changes
over time in matters such as interest rates and life expectancy statistics. Dr. Burke
testified he used the same methodology in each report. Additionally, as we already
indicated, Dr. Burke is not unreliable merely because he presented the court with options
for Miller's lost earnings based on different retirement ages and options for the value of
services based on the method of replacing those services.
{¶ 87} For the foregoing reasons we find the award for loss of support and services
was not against the manifest weight of the evidence. Therefore, we overrule the fifth
assignment of error.
IV. CONCLUSION
{¶ 88} Having overruled each of the assignments of error, we affirm the judgment
of the Court of Claims of Ohio.
Judgment affirmed.

TYACK and DORRIAN, JJ., concur.