[Cite as Carson v. Ohio Dept. of Transp., 2010-Ohio-4584.]

                                      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




MICHAEL L. CARSON

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-01581-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Michael L. Carson, filed this action against defendant,
Department of Transportation (ODOT), contending that his truck was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
roadway condition on Interstate 70 West in Franklin County. Plaintiff described the
particular damage incident noting that: “I was getting on I 270 S from I 70 W leaving
Pickerington, about a half mile from the on ramp on the left side of the far right lane I hit
a pot hole” causing tire and rim damage.                     Plaintiff filed this complaint requesting
damage recovery in the amount of $751.00, the stated cost of replacement parts
resulting from the described incident.               Plaintiff recalled that his damage incident
occurred on January 11, 2010 at approximately 7:40 p.m. The filing fee was paid.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s January 11, 2010 described occurrence.                 Defendant located the particular
pothole between “state mileposts 108.77 to 109.0 on I-70 westbound to southbound I-
270 in Franklin County.” Defendant explained that ODOT records show no reports of a
pothole at the location indicated were recorded prior to plaintiff’s damage event.
Defendant related that ODOT received two complaints of potholes on Interstate 70 (on
December 14, 2009 and January 14, 2010) “but they are not in the same location as
plaintiff’s incident.” Furthermore, defendant related that ODOT records show fifteen
complaints (copies submitted) were received on January 11, 2010 for potholes on
Interstate 270 “but these are not in the same location as plaintiff’s.” Defendant argued
that plaintiff did not provide any evidence to establish the length of time the particular
pothole was present on the roadway prior to January 11, 2010. Defendant suggested
that “it is more likely than not the pothole existed in that location for only a relatively
short amount of time before plaintiff’s incident.”
       {¶ 3} Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Franklin County Manager conducts roadway inspections on all state roadways
within the county on a routine basis, at least one to two times a month.” Apparently, no
potholes were discovered in the vicinity of plaintiff’s incident the last time that section of
roadway was inspected prior to January 11, 2020. Defendant asserted that “I-270 was
in good condition at the time and in the general vicinity of plaintiff’s incident.” Defendant
stated that, “[a] review of the six-month maintenance history (record submitted) for the
area in question reveals that no repairs were made for westbound I-70 and six (6)
pothole patching operations were conducted in the general vicinity of plaintiff’s incident
on southbound I-270;” the last time pothole patching operations were conducted before
January 11, 2010 was January 9, 2010. Defendant noted, “that if ODOT personnel had
detected any defects they would have been promptly scheduled for repair.”
       {¶ 4} Plaintiff filed a response arguing that, “[t]he hole may have been there for
some time and was either un-noticed or considered acceptable for a matter of time
leading up to the time of the event at hand.” Plaintiff asserted that due to inclement
weather conditions defendant should have conducted roadway inspections with more
frequency. Plaintiff did not supply any evidence to establish the length of time that the
particular damage-causing pothole was present on the roadway prior to 7:40 p.m. on
January 11, 2010. For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his 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. 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 defendant had actual notice of the pothole
on Interstate 70 prior to the night of January 11, 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, 31 Ohio Misc. 2d 1, 31
OBR 64, 507 N.E. 2d 1179.         “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. The fact that defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident on various occasions does not
prove negligent maintenance of the roadway on the part of ODOT. 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 plaintiff may have suffered from the pothole.
       {¶ 10} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained a known hazardous roadway condition. Plaintiff failed
to prove his property damage was connected to any conduct under the control of
defendant, or that defendant was negligent in maintaining the roadway area, or that
there was any actionable 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.
Consequently, plaintiff’s claim is denied.




                                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




MICHAEL L. CARSON

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-01581-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:

Michael L. Carson                                 Jolene M. Molitoris, Director
134 Somer Street                                  Department of Transportation
Hillsboro, Ohio 45133                             1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
4/27
Filed 5/14/10
Sent to S.C. reporter 9/17/10
