[Cite as Hite v. Ohio Dept. of Transp., 2011-Ohio-6941.]



                                       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




BETH A. HITE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2011-07311-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Beth Hite, filed this action against defendant, Ohio Department of
Transportation (ODOT), contending that her vehicle was damaged as a proximate result
of negligence on the part of ODOT in maintaining a hazardous condition on US Route
20-A.    In her complaint, plaintiff stated that she hit a pothole and the impact damaged
two of her car’s rims. Plaintiff recalled the damage event occurred in March 2011 at
approximately 6:45 a.m. Plaintiff asserted she notified ODOT of the problem and related
that the pothole was subsequently repaired. Plaintiff seeks recovery of damages in the
amount of $1,224.00, the stated total amount for estimated repair expenses. The filing
fee was paid.
        {¶2}     Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s incident.       Defendant related that plaintiff’s incident occurred “between
mileposts 9.59 and 9.85 on US 20-A in Lucas County.”           Defendant noted that plaintiff
submitted a “Damage Incident Report on May 3, 2011” to ODOT listing the incident date
as May 3, 2011. Nonetheless, plaintiff informed ODOT in that same report she had
previously notified ODOT of the pothole and it had been repaired.              Defendant
determined “that the pothole was fixed on March 15, 2011, after the plaintiff called in.
This is the date that will be used for this investigation.” Defendant denied receiving any
prior calls or complaints about a pothole or potholes in the vicinity of that location.
Defendant asserted that plaintiff did not offer any evidence to establish the length of
time the pothole existed on US 20-A prior to her incident.
       {¶3}   Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Lucas County Manager inspects all state roadways within the county at least
two times a month.” Apparently, no potholes were discovered in the vicinity of plaintiff’s
incident the last time that section of roadway was inspected prior to March 15, 2011.
The claim file is devoid of any inspection record. Defendant argued that plaintiff has
failed to offer any evidence to prove her property damage was attributable to any
conduct on the part of ODOT personnel. Defendant stated that, “[a] review of the six-
month maintenance history [record submitted] also reveals that general maintenance
and inspection is conducted to ensure a properly maintained roadway.” Plaintiff did not
file a response.
       {¶4}   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. 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.
       {¶5}   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.
       {¶6}    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 conditions or defects 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 insufficient evidence that defendant had actual notice of
the pothole on US 20-A prior to March 15, 2011.
       {¶7}    Therefore, to find liability, plaintiff must prove that ODOT had constructive
notice of the defect.     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 defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458.
       {¶8}    In order for there to be constructive notice, plaintiff must show 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 . 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. “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. Insufficient evidence has been submitted to show that ODOT had constructive
notice of the pothole.
       {¶9}    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 potholes 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. A pothole patch that deteriorates in less than ten days is prima
facie evidence of negligent maintenance.          See Matala v. Ohio Department of
Transportation, Ct. of Cl. No. 2003-01270-AD, 2003-Ohio-2618. 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 establish that the pothole that damaged her
vehicle had been previously patched or that the pothole was patched with material
subject to rapid deterioration. Plaintiff, in the instant claim, has not produced sufficient
evidence to infer 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
plaintiff may have suffered from the pothole.
       {¶10} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained known hazardous roadway conditions. Plaintiff failed
to prove that her property damage was connected to any conduct under the control of
defendant, or that defendant was negligent in maintaining the roadway area, or that
there was any actionable negligence on the part of defendant. Taylor v. Transportation
Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-
10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD.
Consequently, plaintiff’s claim is denied.
                                 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




BETH A. HITE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2011-07311-AD

Deputy 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
                                                  Deputy Clerk

Entry cc:

Beth A. Hite                                      Jerry Wray, Director
5954 Cemetery Road                                Department of Transportation
Whitehouse, Ohio 43571                            1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
8/24
Filed 8/31/11
Sent to S.C. reporter 1/19/12
