[Cite as Marshall v. Ohio Dept. of Transp., 2011-Ohio-5312.]



                                      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




SHERRY MARSHALL

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-03456-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Sherry Marshall, filed this action against defendant, Department
of Transportation (ODOT), contending that her 2005 Cadillac was damaged as a
proximate result of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 71 in Hamilton County. Specifically, plaintiff related that her car
sustained tire and rim damage after she struck a deep pothole while “traveling from Red
Bank to 71 south.”        In her complaint, plaintiff requested damage recovery of $393.65,
the cost of a replacement tire and related automotive repair expenses, as well as
reimbursement of the filing fee. The filing fee was paid.
        {¶2}     Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the particular damage-causing condition prior to
plaintiff’s December 27, 2010 described occurrence. Defendant located the particular
pothole at milepost 9.92 on I-71 in Hamilton County and advised that ODOT did not
receive any complaints or otherwise have notice of the condition prior to plaintiff’s
incident. Defendant denied receiving any other complaints regarding roadway defects
at the particular location despite the fact that this section of Interstate 71 has an
average daily traffic count of over 140,000 vehicles.
       {¶3}    Defendant denied ODOT negligently maintained Interstate 71 in Hamilton
County. Defendant noted that the ODOT “Hamilton County Manager inspects all state
roadways within the county on a routine basis, at least one to two times a month.”
Apparently, no potholes were discovered at the location of plaintiff’s incident on I-71 the
last time that section of roadway was inspected prior to December 27, 2010. The claim
file is devoid of any copy of ODOT Hamilton County inspection records. Defendant
suggested that the pothole “existed in that location for only a relatively short amount of
time before plaintiff’s incident.”
       {¶4}    Defendant submitted “Maintenance Records” for Interstate 71 covering the
dates from June 27, 2010 to December 27, 2010.              According to the information
supplied, pothole patching operations were conducted in the vicinity of plaintiff’s incident
on August 24, and November 10, 2010.
       {¶5}    Plaintiff did not file a response. Plaintiff did not produce any evidence to
establish the length of time that the particular defective condition on I-71 existed prior to
December 27, 2010.
       {¶6}    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.
       {¶7}    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.
      {¶8}     In order to prove a breach of the duty to maintain the highways, plaintiff
must prove, by a preponderance of the evidence, that defendant had actual or
constructive notice of the precise condition or defect alleged to have caused the
accident.    McClellan v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388.
Defendant is only liable for roadway conditions of which it has notice but fails to
reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR
64, 507 N.E. 2d 1179. There is no evidence that defendant had actual notice of the
defect.     Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the defect must be presented.
      {¶9}     “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of
Fahle (1950), 90 Ohio App. 195, 197-198, 47 O.O. 231, 105 N.E. 2d 429. “A finding of
constructive notice is a determination the court must make on the facts of each case not
simply by applying a pre-set time standard for the discovery of certain road hazards.”
Bussard, at 4.       “Obviously, the requisite length of time sufficient to constitute
constructive notice varies with each specific situation.” Danko v. Ohio Dept. of Transp.
(Feb. 4, 1993), Franklin App. 92AP-1183.         In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, that
sufficient time has elapsed after the dangerous condition appears, so that under the
circumstances defendant should have acquired knowledge of its existence. Guiher v.
Dept. of Transportation (1978), 78-0126-AD; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
      {¶10} The trier of fact is precluded from making an inference of defendant’s
constructive notice, unless evidence is presented in respect to the time that the pothole
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458. No evidence was presented to establish the time that the
particular condition was present. Size of the defect is insufficient to show notice or
duration of existence. O’Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d
287, 587 N.E. 2d 891. Plaintiff has failed to prove that defendant had constructive
notice of a dangerous condition. 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. Therefore, defendant is not liable for any damage that plaintiff
may have suffered from the pothole.




                               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




SHERRY MARSHALL

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2011-03456-AD

Acting Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION

      Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                ________________________________
                                                DANIEL R. BORCHERT
                                                Acting Clerk
Entry cc:

Sherry Marshall                  Jerry Wray, Director
5921 Clephane Avenue             Department of Transportation
Cincinnati, Ohio 45227           1980 West Broad Street
                                 Columbus, Ohio 43223
SJM/laa
7/1
Filed 7/13/11
Sent to S.C. reporter 10/13/11
