[Cite as Collier v. Ohio Dept. of Transp., 2010-Ohio-4223.]

                                       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




LAURA COLLIER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-01701-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On January 12, 2010, at approximately 6:45 p.m., plaintiff, Laura Collier,
was traveling south on Interstate 270 in Franklin County “somewhere near the Main
Street exit” when her 2008 BMW 335XI struck a pothole causing rim damage to the
vehicle. Plaintiff pointed out she did not see the pothole “as it was dark out” and even if
she could have seen the pothole she could not have maneuvered around the defect
“because there were cars surrounding on all sides” her lane of travel. Interstate 270
South near the Main Street exit contains three roadway lanes of travel. The Main Street
exit at Interstate 270 south corresponds to milepost 41.32.         Plaintiff asserted the
damage to her car was proximately caused by negligence on the part of defendant,
Department of Transportation (ODOT), in failing to maintain the roadway free of defects
such as potholes. Plaintiff filed this complaint seeking to recover $495.32, the total cost
of replacement parts and repair expenses she incurred as a result of striking the pothole
on Interstate 270. 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 12, 2010 described occurrence. Defendant advised ODOT records
show no complaints of a pothole were received at the location on Interstate 270 South
described by plaintiff (milepost 41.32).     Defendant did submit documentation that
twenty-one complaints of potholes on Interstate 270 were received on January 12,
2010, the day of plaintiff’s incident. The approximate time of day these complaints were
received was generally not indicated. None of the pothole complaints correspond to the
location provided by plaintiff according to defendant. One complaint reported potholes
in the center lanes of Interstate 270 South “just before the lanes merge at (Interstate) 70
(milepost 42.82). Another complaint located potholes “between Hamilton Road offramp
(milepost 37.36) and 70 offramp (milepost 42.82). Another complaint described multiple
“pot holes on I 270 SB on the east side between Hamilton (milepost 37.36) on E Broad
street (milepost 39.53) exits.” Still another complaint located a “huge pothole around
mile marker 38.3 to 38.5.” An additional complaint reported “many potholes in center
lane of 270 from airport (milepost 37.36) to [o]betz (milepost 48.07) 270 South.” Yet
three other complaints reported pothole damage to vehicles “[o]n SB 270 between
Hamilton Rd/Broad St.” Defendant’s records show ODOT received fifteen complaints
on January 11, 2010 regarding potholes on Interstate 270 in Franklin County. None of
these complaints were detailed by defendant. Furthermore, complaints of potholes on
Interstate 270 were received by defendant on January 4, January 5, January 6 (two),
January 7 (three), January 8 (two), and January 10, 2010. None of these complaints
were detailed by defendant.      Despite all complaints received by ODOT regarding
potholes on Interstate 270 both on the date of plaintiff’s incident and previous dates in
January 2010, defendant specifically denied having any prior notice of a pothole located
at milepost 41.32 on Interstate 270. Defendant suggested “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} Furthermore, defendant contended plaintiff did not offer any evidence to
prove the roadway was negligently maintained. Defendant related that ODOT “Franklin
County Manager conducts inspections on all state roadways within the county on a
routine basis, at least one to two times a month.” Defendant stated “if ODOT personnel
had detected any defects they would have been promptly scheduled for repair.”
Defendant’s submitted records show ODOT personnel patched potholes in the vicinity
of plaintiff’s incident on July 8, 2009, July 9, 2009, and January 9, 2010, just three days
prior to the incident forming the basis of this claim.
       {¶ 4} Plaintiff filed a response reasserting that the location of the damage-
causing pothole was “somewhere near Main” on Interstate 270. Plaintiff pointed out the
Hamilton Road exit and Broad Street exits are the exits prior to the Main Street exit on
Interstate 270.     Plaintiff suggested defendant had actual notice of the pothole
considering all the complaints received about potholes on Interstate 270.
       {¶ 5} 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.
       {¶ 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 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 some evidence defendant had actual notice of the
pothole on Interstate 270 prior to plaintiff’s January 12, 2010 incident. However, the
evidence presented is insufficient to establish liability on an actual notice basis.
       {¶ 8} Therefore, to find liability plaintiff must prove 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 the
defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458.
       {¶ 9} In order for there to be constructive notice, plaintiff must show 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 ODOT
had constructive notice of the pothole for a sufficient time frame to invoke liability.
       {¶ 10} 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 defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident on January 9, 2010 tends to
indicate the pothole plaintiff’s car struck was a rapidly deteriorating repair. A pothole
patch that deteriorates in less than ten days is prima facie evidence of specific negligent
maintenance.     See Matala v. Ohio Department of Transportation, 2003-01270-AD,
2003-Ohio-2618. Sufficient evidence has been offered to prove the pothole plaintiff’s
car struck had been previously patched and rapidly deteriorated. The fact the pothole
plaintiff’s car struck was a deteriorated patch warrants a finding of liability under
negligent maintenance. Schrock v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-02460-
AD, 2005-Ohio-2479; Fisher v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-04869-AD,
2007-Ohio-5288. Plaintiff has suffered damages in the amount of $495.32. The $25.00
filing fee may be reimbursed as compensable costs pursuant to R.C. 2335.19. See
Bailey v. Ohio Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19,
587 N.E. 2d 990.




                              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




LAURA COLLIER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-01701-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 plaintiff in the amount of $520.32, which includes the filing fee. Court costs are
assessed against defendant.




                               DANIEL R. BORCHERT
                               Deputy Clerk

Entry cc:

Laura Collier                  Jolene M. Molitoris, Director
1226 Rock Mill Drive           Department of Transportation
Blacklick, Ohio 43004          1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
4/27
Filed 5/5/10
Sent to S.C. reporter 9/2/10
