[Cite as Leisgang v. Ohio Dept. of Transp., 2011-Ohio-4786.]



                                      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




BRENT LEISGANG

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-02280-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Brent Leisgang, filed this action against defendant, Department of
Transportation (ODOT), contending his 1988 Mercedes Benz was damaged as a
proximate result of negligence on the part of ODOT personnel in maintaining a
hazardous condition on Interstate 74 in Hamilton County. Specifically, plaintiff asserted
he suffered two damaged tires to his vehicle as a result of striking potholes located
eastbound on I-74 in the center lane “between mile markers 8 & 9.” Plaintiff recalled the
described incident occurred on January 6, 2011 at approximately 8:00 p.m. Plaintiff
seeks damage recovery in the amount of $537.12, which includes a request for
reimbursement of the $25.00 filing fee. 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 potholes prior to
plaintiff’s January 6, 2011 described occurrence.              Defendant located the potholes
“between mileposts 8.00 and 9.00 on I-74 in Hamilton County” and advised that “ODOT
did not receive any reports of the pothole or have knowledge of the pothole prior to the
incident.” Defendant asserted that plaintiff failed to produce any evidence to establish
the length of time the potholes existed on I-74 prior to his damage occurrence.
Defendant suggested that “it is likely the pothole existed for only a short time before the
incident.”
       {¶3}   Furthermore, defendant argued that plaintiff failed to prove the roadway
was negligently maintained.     Defendant explained that the ODOT “Hamilton County
Manager inspects all state roadways within the county at least two times a month.”
Apparently no potholes were detected between mileposts 8.00 and 9.00 on Interstate 74
the last time that section of roadway was inspected before January 6, 2011. The claim
file is devoid of any roadway inspection records. Defendant did submit “Maintenance
Records” for Interstate 74 covering the period from July 6, 2010 to January 6, 2011.
These records show that pothole patching repairs were needed in the vicinity between
mileposts 8.00 and 9.00 on July 11 and 12, 2010, and January 3, 2011.
       {¶4}   Plaintiff filed a response asserting that defendant negligently maintained
the roadway in that the potholes he hit were not promptly repaired and that potholes
were still evident on the roadway as recently as February 5, 2011, (pictures submitted).
       {¶5}   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 79, 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.
       {¶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 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 condition 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
potholes.     Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the potholes must be presented.
       {¶8}    “[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, 47 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.
       {¶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 potholes
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 potholes were 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 potholes.
      {¶10} Plaintiff has not produced sufficient 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.
The fact defendant’s “Maintenance History” reflects pothole repairs were made in the
vicinity of plaintiff’s incident one time in the month preceding January 6, 2011 does not
prove negligent maintenance of the roadway on the part of ODOT.         See Maynard v.
Ohio Dept. of Transp., Ct. of Cl. No. 2004-03730-AD, 2004-Ohio-3284; Marcis v. Ohio
Dept. of Transp., Ct. of Cl. No. 2004-05830-AD, 2004-Ohio-4830. 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




BRENT LEISGANG

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-02280-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:

Brent Liesgang                                    Jerry Wray, Director
200 Hickory Court                                 Department of Transportation
Harrison, Ohio 45030                              1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
5/12
Filed 6/14/11
Sent to S.C. reporter 9/21/11
