[Cite as Murphy v. Ohio Dept. of Transp., 2011-Ohio-7051.]



                                                       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



ELINOR MURPHY

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2011-09110

Judge Alan C. Travis

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

        {¶1} On October 17, 2011, defendant, Ohio Department of Transportation
(ODOT), filed a motion for summary judgment pursuant to Civ.R. 56(B). Plaintiff has not
filed a response. The motion is now before the court for a non-oral hearing.
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Case No. 2011-09110                            -2-                               ENTRY

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
       {¶4} In her complaint, plaintiff alleges that on June 16, 2011, her vehicle was
damaged when it struck a pothole on Interstate 71 (I-71) near mile marker 10.6. Plaintiff
claims that ODOT was negligent in its maintenance of I-71 and that ODOT’s negligence
proximately caused the damage to her vehicle.
       {¶5} Defendant has the duty to maintain its highways in a reasonably safe
condition for the motoring public. Knickel v. Dept. of Transp. (1976), 49 Ohio App.2d
335. However, defendant is not an insurer of the safety of its highways. See Kniskern
v. Twp. of Somerford (1996), 112 Ohio App.3d 189; Rhodus v. Ohio Dept. of Transp.
(1990), 67 Ohio App.3d 723. “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.” Carson v. Ohio Dept. of
Transp., Ct. of Cl. No. 2010-01581-AD, 2010-Ohio-4584, ¶9, citing Denis v. Dept. of
Transp. (Feb. 27, 1976), Ct. of Cl. No. 1975-0287-AD.
       {¶6} Inasmuch as plaintiff has failed to respond to defendant’s motion, there is no
evidence that defendant had actual notice of the pothole in question prior to the June
16, 2011 incident.      Furthermore, in support of the motion for summary judgment,
defendant submitted the affidavit of William Davis, defendant’s “District Eight Roadway
Services Engineer.” Therein, Davis avers:
       {¶7} “3.    ODOT     District   Eight   maintenance   personnel   were   continually
monitoring and conducting normal routine maintenance to the area of Interstate Route
71 identified by the Plaintiff;
Case No. 2011-09110                         -3-                                    ENTRY

       {¶8} “4.   ODOT’s maintenance activity records indicate that there was a pothole
patching operation on Interstate Route 71 South at mile marker 10.6 on June 16, 2011.
This repair was performed by ODOT’s night crew in the early morning hours of June 16,
2011, at least twelve (12) hours prior to the claimed incident (7:30 pm per Plaintiff);
       {¶9} “5.   Any problems in this area would have been fixed by this repair, and
ODOT’s maintenance activity records indicate that no further repairs were required at
this location in the 30 days after the June 16 incident.
       {¶10} “6. ODOT complaint records from December 16, 2010, to June 16, 2011,
do not contain any complaints of potholes in the area of the alleged incident on
Interstate Route 71 South.”
       {¶11} The only permissible inference to draw from Davis’ uncontested affidavit is
that ODOT did not have constructive notice of the pothole in question and that ODOT’s
general maintenance practices with respect to the roadway were reasonable, under the
circumstances. See Herlihy v. Dept. of Transp. (July 19, 1999), Ct. of Cl. No. 1999-
07011-AD.
       {¶12} “The moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record that demonstrate
the absence of a genuine issue of fact on a material element of one or more of the
nonmoving party’s claims for relief. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. If
the moving party satisfies this initial burden by presenting or identifying appropriate
Civ.R. 56(C) evidence, the nonmoving party must then present similarly appropriate
evidence to rebut the motion with a showing that a genuine issue of material fact must
be preserved for trial. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2. The
nonmoving party does not need to try the case at this juncture, but its burden is to
produce more than a scintilla of evidence in support of its claims.            McBroom v.
Columbia Gas of Ohio, Inc. (June 28, 2001), Franklin App. No. 00AP-1110.” Nu-Trend
Case No. 2011-09110                       -4-                                   ENTRY

Homes, Inc. v. Law Offices of DeLibera, Lyons & Bibbo, Franklin App. No. 01AP-1137,
2003-Ohio-1633, ¶17.
          {¶13} Plaintiff has not responded to defendant’s motion with any evidence to
rebut defendant’s motion or otherwise establish the existence of a genuine issue of
material fact.
          {¶14} Accordingly, defendant’s motion for summary judgment is GRANTED and
judgment is rendered in favor of defendant. Court costs are assessed against plaintiff.
The clerk shall serve upon all parties notice of this judgment and its date of entry upon
the journal.



                                         _____________________________________
                                         ALAN C. TRAVIS
                                         Judge

cc:


Kristin S. Boggs                            Elinor Murphy
Assistant Attorney General                  6565 Crest Circle
150 East Gay Street, 18th Floor             Middletown, Ohio 45042
Columbus, Ohio 43215-3130

AMR/dms
Filed December 28, 2011
To S.C. reporter March 20, 2012
