[Cite as Helman v. Ohio Dept. of Transp., 2011-Ohio-4368.]



                                      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




PATRICIA HELMAN

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-01577-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶1} Plaintiff, Patricia Helman, filed this action against defendant, Department of
Transportation (ODOT), contending her vehicle was damaged as a proximate result of
negligence on the part of ODOT in maintaining a hazardous condition on Interstate 75
North in Montgomery County. Specifically, plaintiff noted her car was damaged when
the vehicle struck a pothole in the center lane on Interstate 75 North. Plaintiff recalled
her damage incident occurred on November 28, 2010 at approximately 12:30 p.m. In
her complaint, plaintiff requested damages in the amount of $309.62, the cost of
replacement parts and repair expenses plus $ 25.00 for filing fee reimbursement. The
$25.00 filing fee was paid.
        {¶2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the damage-causing pothole on Interstate 75
North prior to plaintiff’s occurrence. Defendant advised that the pothole plaintiff hit was
at or near milepost 53.32 in Montgomery County. In addition, defendant determined
that the pothole was not located within the limits of a construction project maintained by
the Ruhlin Company.           Defendant argued plaintiff failed to produce any evidence to
establish the length of time the pothole at milepost 53.32 existed prior to 12:30 p.m. on
November 28, 2010.
      {¶3} Defendant asserted plaintiff failed to offer any evidence to prove her car was
damaged as a proximate result of negligent roadway maintenance on the part of ODOT.
Defendant argued plaintiff failed to prove her property damage was the result of any
conduct attributable to ODOT personnel. Defendant stated that, “ODOT’s six-month
maintenance history [record submitted] for I-75 in Montgomery County shows that no (0)
pothole repairs were made with their own forces.”
      {¶4} Plaintiff did not file a response. Plaintiff did not provide any evidence to
establish the length of time the particular damage-causing pothole at milepost 53.32 on
Interstate 75 North existed prior to 12:30 p.m. on November 28, 2010.
      {¶5} 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.
      {¶6} 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.
      {¶7} 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
pothole.    Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the pothole must be presented.
      {¶8} “[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 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.
      {¶9} 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 length of time
that the particular pothole was present. Size of the defect (pothole) is insufficient to
show notice or duration of existence. O’Neil v. Department of Transportation (1988), 61
Ohio Misc. 2d 287, 587 .E. 2d 891. Plaintiff has failed to prove that defendant had
constructive notice of the pothole. 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 roadway defect. Knight v. Ohio Dept. of Transp., Ct. of Cl.
No. 2010-03690-AD, 2010-Ohio-6546.


                                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




PATRICIA HELMAN

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2011-01577-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:

Patricia Helman                                  Jerry Wray, Director
7780 Midforest Court                             Department of Transportation
Huber Hts., Ohio 45424                           1980 west Broad Street
                                                 Columbus, Ohio 43223
SJM/laa
4/26
Filed 5/26/11
Sent to S.C. reporter 8/26/11
