[Cite as Elliott v. Ohio Dept. of Transp., 2011-Ohio-4149.]



                                        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




JENNIFER ELLIOTT

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-10301-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


                                           FINDINGS OF FACT
        {¶1}     On June 8, 2010, at approximately 1:00 p.m., plaintiff’s daughter, Justine
Foust, was driving north on State Route 23 and took the State Route 95 exit where,
allegedly at the end of the exit, her automobile struck a pothole causing tire and rim
damage. Plaintiff’s daughter related the damage-causing pothole was located at the
end of the exit “in the right turning lane.”
        {¶2}     Plaintiff’s daughter implied the damage to her car was proximately caused
by negligence on the part of defendant, Department of Transportation (DOT), in failing
to maintain the roadway exit ramp free of hazardous conditions. Consequently, plaintiff
filed this complaint seeking to recover $1,600.00, the cost of replacement custom rims
and a tire. The filing fee was paid.
        {¶3}     Defendant denied liability in this matter based on the contention no DOT
personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s daughter’s incident. Defendant suggested, “it is more likely than not that the
pothole existed in that location for only a relatively short amount of time before
[Justine’s] incident.” Defendant’s investigation revealed that during the six-month period
prior to Justine’s incident, ODOT personnel conducted seven (7) pothole patching
operations in the general vicinity of the SR 23 exit ramp to SR 95.
      {¶4}    Defendant also suggested that the particular damage-causing roadway
defect may have been located off the traveled portion of the roadway.           Defendant
submitted photographs that were taken on February 14, 2011, which depict several
unrepaired potholes located off the traveled portion of the roadway.          The specific
defects photographed appear clearly outside the lane of travel and outside of the white
painted roadway edgeline.
                                   CONCLUSIONS OF LAW
      {¶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 conditions or defects 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 on SR 23/SR 95 exit ramp prior to the afternoon of June 8, 2010.
      {¶7}    Therefore, to find liability, plaintiff must prove that ODOT had constructive
notice of the defect.    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.
      {¶8}    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 defect 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. “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. No evidence has shown that ODOT had constructive notice of the pothole.
      {¶9}     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. Plaintiff has failed to prove her daughter’s property damage was
caused by any negligence on the part of defendant.
      {¶10} This court has previously held that the Department of Transportation is not
to be held liable for damages sustained by individuals who used the berm or shoulder of
a highway for travel without adequate reasons.          Colagrossi v. Department of
Transportation (1983), 82-06474-AD. Generally, a plaintiff is barred from recovery for
property damage caused by a defect or any condition located off the traveled portion of
the roadway.
      {¶11} The shoulder of a highway is designed to serve a purpose which may
include travel under emergency circumstances. It is for the trier of fact to determine
whether driving on the shoulder is a foreseeable and reasonable use of the shoulder of
the highway. Dickerhoof v. City of Canton (1983), 6 Ohio St. 3d 128, 6 OBR 186, 451
N.E. 2d 1193. In the case at bar, assuming Justine drove over the potholes located on
the berm, neither plaintiff or her daughter has offered a reasonable explanation for
driving on the berm area of a roadway.
      {¶12} Thus if Justine drove off the marked traveled portion of the highway,
based on the rationale of Colagrossi, (1983), 82-06474-AD, this case must be denied. If
a plaintiff sustains damage because of a defect located off the marked, regularly
traveled portion of a roadway, a necessity for leaving the roadway must be shown.
Lawson v. Department of Transportation (1977), 75-0612-AD. Inadvertent travel based
on inattention is not an adequate reason or necessity for straying from the regularly
traveled portion of the roadway. Smith v. Ohio Department of Transportation (2000),
2000-05151-AD, Berwanger v. Ohio Dept. of Transp.,Ct. of Cl. No. 2007-07396-AD,
2008-Ohio-1602.
                                                                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



JENNIFER ELLIOTT

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-10301-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:

Jennifer Elliott                                Jerry Wray, Director
313 Center Street                               Department of Transportation
Cardington, Ohio 43315          1980 West Broad Street
                                Columbus, Ohio 43223
SJM/laa
4/15
Filed 5/24/11
Sent to S.C. reporter 8/19/11
