[Cite as Glascoe v. Ohio Dept. of Transp., 2010-Ohio-6624.]

                                       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




CAROLYN F. GLASCOE

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

Case No. 2010-06311-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Carolyn F. Glascoe, filed this action against defendant,
Department of Transportation (ODOT), contending that she suffered property damage
as a proximate cause of negligence on the part of ODOT personnel in maintaining a
hazardous condition on US Route 35 in Montgomery County. Plaintiff recalled that she
was traveling east on US Route 35 on April 3, 2010 at approximately 2:00 p.m. when
her 2004 Ford Focus struck a pothole causing tire and rim damage to the vehicle. In
her complaint, plaintiff requested damages in the amount of $274.01, the total cost of
replacement parts and related repair expenses she incurred resulting from the April 3,
2010 described incident. The filing fee was paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s April 3, 2010 described occurrence. Defendant located the particular pothole
“at milemarker 10.32 on US 35 in Montgomery County” and advised that “ODOT did not
receive any reports of the pothole or have knowledge of the pothole prior to the (April 3,
2010) incident.” According to ODOT records, no pothole complaints were received in
the vicinity of plaintiff’s incident.
       {¶ 3} Defendant denied that ODOT negligently maintained US Route 35 in
Montgomery County. Defendant noted that the ODOT “Montgomery County Manager
inspects all state roadways within the county at least two times a month.” Apparently no
potholes were discovered at milepost 10.32 on US Route 35 the last time that section of
roadway was inspected prior to April 3, 2010.       Defendant submitted an inspection
record showing that US Route 35 in the vicinity of milepost 10.32 was last inspected
prior to plaintiff’s incident on March 18, 2010. This inspection record bears the notation
that the roadway in the vicinity of milepost 10.32 needed sealed.            Defendant’s
“Maintenance History” shows that ODOT crews patched potholes in the vicinity of
milepost 10.32 on January 15, 2010 and patched the particular damage-causing pothole
on April 5, 2010. Defendant asserted that the particular location of US Route 35 is an
actively inspected location and suggested that the pothole plaintiff’s car struck “existed
for only a short time before the incident.”
       {¶ 4} 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.
       {¶ 5} 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.
      {¶ 6} 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.
      {¶ 7} “[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, 48 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 a finding of
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.
      {¶ 8} 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 N.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.




                               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




CAROLYN F. GLASCOE

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

      Case No. 2010-06311-AD

Clerk Miles C. Durfey


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.



                                                ________________________________
                                                MILES C. DURFEY
                                                Clerk

Entry cc:
Carolyn F. Glascoe              Jolene M. Molitoris, Director
221 Voyager Avenue              Department of Transportation
Dayton, Ohio 45417              1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
9/29
Filed 10/12/10
Sent to S.C. reporter 1/21/11
