[Cite as Morrison v. Ohio Dept. of Transp., 2010-Ohio-5471.]

                                      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




MARILYN MORRISON

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-05013-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Marilyn Morrison, filed this action against defendant, Department
of Transportation (ODOT), contending her 1998 Honda Civic was damaged as a
proximate cause of negligence on the part of ODOT personnel in maintaining hazardous
roadway conditions on Interstate 680 in Mahoning County. Specifically, plaintiff claimed
her car was damaged when the vehicle struck two “long & deep potholes which were
consecutive & stretched 3/4 across the width” of the particular roadway area. Plaintiff
located the damage-causing potholes on “the Connecticut exit after traveling west on
680.” Plaintiff recalled the incident occurred on March 9, 2010 at approximately 12:00
p.m. Plaintiff filed this complaint seeking to recover damages in the amount of $493.36,
the total expense incurred for replacement parts and related automotive repairs that
were needed due to the March 9, 2010 described incident. The $25.00 filing fee was
paid and plaintiff requested reimbursement of that cost along with her damage claim.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the roadway defects on Interstate 680 prior to plaintiff’s
March 9, 2010 damage event. Defendant related that ODOT’s “investigation indicates
that the location of plaintiff’s incident was at milepost 4.07 on I-680 in Mahoning
County.” Defendant denied receiving any prior calls or complaints about potholes in the
vicinity of that location.   Defendant asserted plaintiff did not offer any evidence to
establish the length of time the potholes existed in the vicinity of milepost 4.07 on
Interstate 680 prior to 12:00 p.m. on March 9, 2010. Defendant suggested “it is more
likely the pothole existed for only a short time before the incident.” Defendant argued
plaintiff cannot prevail in a claim involving damage from potholes when requisite notice
on the part of ODOT cannot be established.
       {¶ 3} Alternatively, defendant contended plaintiff did not produce any evidence
to prove the roadway was negligently maintained.          Defendant advised the ODOT
“Mahoning County Manager examines all state roadways within the county at least two
times a month.” Defendant further advised “[g]iven this is a busy interstate, inspections
are done almost daily.” Apparently, no potholes were discovered at milepost 4.07 on
Interstate 680 the last time that particular section of roadway was examined or
inspected prior to 12:00 p.m. on March 9, 2010.          The claim file is devoid of any
inspection or examination record.       Defendant noted “[a] review of the six-month
maintenance history also reveals the exact degree of general maintenance and
inspection conducted to ensure a properly maintained roadway.” Defendant submitted
a copy of the “Maintenance History” for Interstate 680 covering the time period from
September 1, 2009 to March 9, 2009. The submitted “Maintenance History” references
pothole patching operations conducted by ODOT personnel. The document records
pothole patching was done in the vicinity of plaintiff’s incident on January 19, 2010,
February 1, 2010, and March 3, 2010. Defendant asserted the ODOT “inspection and
maintenance program proves the state route is not negligently maintained.”
       {¶ 4} Plaintiff filed a response stating “[n]either did I create the 2 large potholes
that I hit nor did I purposefully hit them.” Plaintiff did not provide any evidence to
establish the length of time the potholes existed prior to 12:00 p.m. on March 9, 2010.
Plaintiff advised that had she had prior knowledge of the potholes she would not have
chosen to travel on that section of Interstate 680.         Plaintiff disputed defendant’s
assertion that ODOT conducts frequent inspections of Interstate 680. Plaintiff implied
the potholes due to their large size would have been detected if inspections were
conducted on a frequent basis.        Plaintiff argued evidence of no prior complaints
regarding the particular potholes “is irrelevant.”
       {¶ 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 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 defendant had actual notice of the potholes
on Interstate 680 prior to 12:00 p.m. on March 9, 2010.
       {¶ 8} Therefore, to find liability based on notice, plaintiff must prove that ODOT
had constructive notice of the defects. 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.
       {¶ 9} 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 defects are 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, 31 Ohio Misc. 2d 1, 31
OBR 507 N.E. 2d 1179. “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.          No evidence has shown ODOT had
constructive notice of the potholes.
       {¶ 10} 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. The fact that defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident on various occasions does not
prove negligent maintenance of the roadway on the part of ODOT. 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 conditions. Herlihy
v. Ohio Department of Transportation (1999), 99-07011-AD. Therefore, defendant is
not liable for any damage plaintiff may have suffered from the potholes.
       {¶ 11} 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




MARILYN MORRISON

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

       Case No. 2010-05013-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:

Marilyn Morrison                                Jolene M. Molitoris, Director
2939 Howell Drive                               Department of Transportation
Poland, Ohio 44514                              1980 West Broad Street
                                                Columbus, Ohio 43223
RDK/laa
6/15
Filed 7/14/10
Sent to S.C. reporter 11/5/10
