[Cite as Klingensmith v. Ohio Dept. of Transp., 2011-Ohio-1119.]

                                      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




LEONARD KLINGENSMITH

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-09353-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Leonard Klingensmith, filed this action against defendant,
Department of Transportation (ODOT), contending his 1966 Lincoln Continental was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on State Route 46 in Trumbull County. Specifically, plaintiff noted
the wheels, tire, and suspension on his car were damaged when the vehicle hit a large
pothole on State Route 46 North “about ½ mile south of Rt. 87 in Trumbull County.”
Plaintiff recalled his property damage incident occurred on June 16, 2010 at
approximately 9:15 p.m. In his complaint, plaintiff requested damage recovery in the
amount of $990.40, the stated cost of replacement parts and related repair expenses he
incurred resulting from the described incident. Plaintiff reported the damage-causing
pothole was approximately “35" long x 17" wide x 4 ½" deep.” 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 defect prior to plaintiff’s
June 16, 2010 described occurrence. Defendant located the pothole at milepost 23.20
on SR 46 in Trumbull County. Defendant explained that ODOT records show no prior
reports of a pothole condition at the location despite the fact that particular “section of
roadway has an average daily traffic count between 750 and 1,360 vehicles.”
Defendant argued that plaintiff did not provide any evidence to establish the length of
time the particular defect at milemarker 23.20 was present on the roadway prior to 9:15
p.m. on June 16, 2010. 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} Defendant pointed out that plaintiff “has presented no evidence to indicate
how long the pothole existed in the roadway prior to his (June 16, 2010) incident.”
Defendant related “that if ODOT personnel had detected any defects beforehand, they
would have been promptly scheduled for repair.” Defendant noted that the roadway on
State Route 46 North in the vicinity of milepost 23.20 “was in good condition at the time
and in the general vicinity of plaintiff’s incident.” Defendant explained that the ODOT
“Trumbull 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 or other defects were discovered near milepost 23.20 on State Route 46 North
the last time that section of roadway was inspected prior to June 16, 2010. The claim
file is devoid of any inspection record. Defendant did submit a “Maintenance History”
for State Route 46 covering the period from December 1, 2009 to June 16, 2010.
These records show that pothole patching repairs were conducted in the area including
milepost 23.20 on January 13, 2010, February 10, 2010, and March 3, 2010.
       {¶ 4} 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 that defendant had actual notice of the
pothole on State Route 46 prior to June 16, 2010.
      {¶ 7} Therefore, to find liability, plaintiff must prove that ODOT had constructive
notice of the defects.   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. “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, of 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 that 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




LEONARD KLINGENSMITH

      Plaintiff

      v.
OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-09353-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:

Leonard Klingensmith                              Jolene M. Molitoris, Director
9068 Stub Road                                    Department of Transportation
Orwell, Ohio 44676                                1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
12/16
Filed 1/7/11
Sent to S.C. reporter 3/4/11
