[Cite as Jagers v. Ohio Dept. of Transp., Dist. 4, 2010-Ohio-6544.]

                                        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




CRYSTAL JAGERS

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 4

        Defendant

Case No. 2009-09728-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Crystal Jagers, filed this action against defendant, Department of
Transportation (ODOT), contending that she suffered property damage to her 2002
Acura as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on State Route 8 in Summit County. Plaintiff related she was
traveling south on State Route 8 “just after the 13 mile marker, but before the Hudson-
Peninsula entrance ramp” when her car struck a pothole causing substantial damage to
the vehicle.        Plaintiff recalled the described incident occurred on July 30, 2009, at
approximately 10:00 p.m. In her complaint, plaintiff requested damage recovery in the
amount of $2,114.00, the stated total cost of replacement parts, repair costs, and towing
expense. The $25.00 filing fee was paid and plaintiff requested reimbursement of that
cost along with her damage claim.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of any roadway defects on State Route 8 prior to
plaintiff’s July 30, 2009 incident.           Defendant denied receiving any calls or complaints
about the particular damage-causing pothole which according to ODOT was located at
milemarker 12.6 on State Route 8 southbound. Defendant asserted plaintiff did not
offer any evidence to establish the length of time the pothole existed in the vicinity of
milepost 12.6 on State Route 8 prior to 10:00 p.m. on July 30, 2009.              Defendant
suggested that “it is more likely than not that 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 “Summit 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 July 30, 2009. The claim file is devoid of any inspection
record. Defendant argued that plaintiff has failed to offer any evidence to prove her
property damage was attributable to any conduct on the part of ODOT personnel.
Defendant asserted that “the roadway was in relatively good condition at the time 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 (0) pothole patching
operations were conducted in the southbound direction of SR 8.” Defendant advised,
“that if ODOT personnel had detected any defects they would have been promptly
scheduled for repair.”
       {¶ 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. 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 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 defendant had actual notice of the pothole
on State Route 8 prior to the night of July 30, 2009.
       {¶ 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 by simply 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 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.      The fact that defendant’s “Maintenance History” reflects no
pothole repairs were made in the vicinity of plaintiff’s incident during the preceding six
month 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 her 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




CRYSTAL JAGERS

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 4

      Defendant

       Case No. 2009-09728-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:

Crystal Jagers                                   Jolene M. Molitoris, Director
1841 Laurel Drive                                Department of Transportation
Twinsburg, Ohio 44087                            1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
8/12
Filed 9/20/10
Sent to S.C. reporter 12/29/10
