[Cite as Allen v. Dept. of Transp., 2011-Ohio-6956.]




                                       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 S. ALLEN

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2011-06919-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                           FINDINGS OF FACT
        {¶1}     In her complaint, plaintiff, Patricia Allen, stated that on April 5, 2011, at
approximately 7:30 a.m., she was traveling southbound on I-675 when she “hit a
pothole” which damaged her tire, wheel, and a wheel hub.
        {¶2}     Plaintiff contends her 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
$1,119.99, the cost of replacement parts and associated vehicle repair expenses. The
$25.00 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 between mileposts 17.81 and 22.90
on I-675 in Greene County. Defendant noted that DOT records show one complaint
was received “but it was for different circumstances and location.” Defendant denies
receiving any 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
Greene County Manager “inspects all state roadways within the county at least two
times a month.” Apparently no potholes were discovered on I-675 in the vicinity of
plaintiff’s incident the last time this roadway was inspected prior to April 5, 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 her or that her 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
PATRICIA S. ALLEN

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2011-06919-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 S. Allen                                 Jerry Wray, Director
1863 W. County Line Road                          Department of Transportation
Urbana, Ohio 43078                                1980 West Broad Street
                                                  Columbus, Ohio 43223

9/1
Filed 9/13/11
Sent to S.C. reporter 1/27/12
