[Cite as Taylor v. Ohio Dept. of Transp., 2011-Ohio-5537.]



                                       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

DAVID TAYLOR,                                                Case No. 2011-03839-AD

       Plaintiff,

       v.                                                    Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,
DISTRICT 8,

       Defendant.        MEMORANDUM DECISION


                                          FINDINGS OF FACT
        {¶ 1} In his complaint, plaintiff, David Taylor, stated that on February 27, 2011,

at approximately 8:00 a.m., he was traveling south bound on I-75 in the left lane when “I

hit a large pothole at the 9.5 mile marker right under the Paddock overpass. The

pothole was so deep that it broke the belts in my left front tire.”

        {¶ 2} Plaintiff contends his property damage was proximately caused by

negligence on the part of defendant, Department of Transportation (DOT), in failing to

maintain the roadway. Consequently, plaintiff filed this complaint seeking to recover

$127.12, the cost of a replacement tire and associated repair expenses. The filing fee

was paid.

        {¶ 3} Defendant denies liability in this matter based on the contention that no

DOT personnel had any knowledge of the pothole prior to plaintiff’s property-damage

event. Defendant states the pothole was located at milepost 9.50 on I-75 in Hamilton

County. Defendant noted that DOT records show one report of a pothole was received

for “I-75 at the same location as plaintiff’s but it was (received) two months before
plaintiff’s incident and the pothole was repaired the same day.”        Defendant denies

receiving any other reports of the damage-causing pothole prior to the time which

plaintiff encountered it.

       {¶ 4} Furthermore, defendant asserts plaintiff has not produced evidence to

show DOT negligently maintained the roadway.          Defendant explains that the DOT

Hamilton County Manager “inspects all state roadways within the county at least two

times a month.” Apparently no potholes were discovered at milepost 9.50 on I-75 in the

vicinity of plaintiff’s incident the last time this roadway was inspected prior to February

27, 2011.    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.

       {¶ 5} Plaintiff did not file a response.

                                  CONCLUSIONS OF LAW

       {¶ 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 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 pothole 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.
       {¶ 8} To prove a breach of duty by defendant to maintain the highways plaintiff

must establish, by a preponderance of the evidence, that DOT 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. No evidence has shown that defendant had actual notice of the

damage-causing pothole.

       {¶ 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

defective condition (pothole) developed. Spires v. Ohio Highway Department (1988), 61

Ohio Misc. 2d 262, 577 N.E. 2d 458. 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 N.E. 2d 891. There is insufficient evidence to show defendant had

constructive notice of the pothole.

       {¶ 10} 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.

       {¶ 11} Plaintiff has not shown, by a preponderance of the evidence, that

defendant failed to discharge a duty owed to him or that his property damage was

proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-

causing pothole was connected to any conduct under the control of defendant or that

there was any 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.




                              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




DAVID TAYLOR,                                          Case No. 2011-03839-AD

        Plaintiff,

        v.                                             Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,
DISTRICT 8,

        Defendant.        ENTRY OF ADMINISTRATIVE DETERMINATION



        {¶ 12} 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:

David Taylor                                    Jerry Wray, Director
1209 Terry Court                                Department of Transportation
Cincinnati, Ohio 45215                          1980 West Broad Street
                                                Columbus, Ohio 43223




6/17
Filed 7/19/11
Sent to S.C. reporter 10/27/11
