[Cite as Underwood v. Ohio Dept. of Transp., 2011-Ohio-5314.]



                                      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




JEWELIENNE UNDERWOOD

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2011-03782-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶1}     Plaintiff, Jewelienne Underwood, alleges that on January 29, 2011, at
approximately 7:40 a.m., she was traveling “from John Scott Highway in Steubenville
Ohio to Route 22 east towards West Virginia. At the connection of road beneath the
overpass my car fell into a huge pothole. * * * The overpass is Alter Ave & the row of
unavoidable potholes were across the length of the road.”                  In her complaint, plaintiff
pointed out that there are numerous potholes in the area and that repairs still need to be
made. Plaintiff submitted photographs depicting the area where her car was damaged.
Upon review, the trier of fact notes the photographs submitted by plaintiff show a
massive pavement deterioration that spans the entire width of the right lane of travel.
The defect is extensive and shows evidence of chronic failed repair efforts.
        {¶2}     Plaintiff filed this complaint seeking to recover $725.38, the cost of a
replacement tire and related repair expenses                    resulting from the January 29, 2011
incident.      Plaintiff asserted she incurred these damages as a proximate result of
Case No. 2006-03532-AD                   -2-               MEMORANDUM DECISION



negligence on the part of defendant, Department of Transportation (DOT), in
maintaining the roadway. The $25.00 filing fee was paid.
       {¶3}   Defendant denied liability based on the assertion it professed to have no
knowledge of the damage-causing pothole prior to plaintiff’s January 29, 2011 incident.
Defendant denied receiving any calls or complaints before January 29, 2011, about a
pothole that DOT located “near milepost 14.93 on US 22 in Jefferson County.”
Defendant suggested, “it is likely the pothole existed for only a short time before the
incident.”
       {¶4}   Defendant explained DOT employees conduct roadway inspections on all
state roadways on a routine basis, “at least two times a month.”        A review of the
maintenance history submitted by defendant shows pothole patching operations were
performed at the location of plaintiff’s incident on January 18, 2011. Defendant denied
DOT employees were negligent in regard to roadway maintenance.
       {¶5}   Plaintiff filed a response stating that the pictures she submitted document
that although the road had been patched multiple times it was not repaired properly or
completely.   Plaintiff suggested defendant negligently maintained the roadway due to
DOT’s failure to properly patch recurring potholes.
                                 CONCLUSIONS OF LAW
       {¶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
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Case No. 2006-03532-AD                     -3-               MEMORANDUM DECISION



Ohio App. 3d 723, 588 N.E. 2d 864.
       {¶7}    To prove a breach of duty by defendant to maintain the highways plaintiff
must establish, by a preponderance of the evidence, that DOT 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.
       {¶8}    Plaintiff has provided sufficient evidence for the trier of fact to find
constructive notice of the pothole has been proven. The photographic evidence plaintiff
supplied establishes that the damage-causing defect was massive in size and
constituted a recurring problem defendant failed to properly correct. Pursuant to the
holding of Fite v. Ohio Dept. of Transp., Ct. of Cl. No. 2009-05757, 2009-Ohio-7124,
“the massive size of a defect coupled with knowledge that the pothole presented a
recurring problem is sufficient to prove constructive notice.” at ¶10.
       {¶9}    Moreover, the trier of fact finds it is extremely unlikely periodic inspection
activity would not have discovered the damage-causing defect at milepost 14.93. The
Case No. 2006-03532-AD                   -4-               MEMORANDUM DECISION



credibility of witnesses and the weight attributable to their testimony are primarily
matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 39 O.O. 2d
366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to believe or
disbelieve, all or any part of each witness’s testimony. State v. Antill (1964), 176 Ohio
St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548.         The court does not find defendant’s
assertions persuasive that routine patrols were conducted or that the roadway was
adequately maintained. Conversely, the trier of fact finds that there is no evidence that
the roadway was routinely inspected or that the inspection was adequate. Kornokovich
v. Ohio Dept. Of Transp., Ct. Of Cl. No. 2009-05641-AD, 2009-Ohio-7123.
      {¶10} In addition, plaintiff has supplied sufficient evidence to show that
defendant did in a general sense, maintain the highway negligently.            Denis v.
Department of Transportation (1976), 75-0287-AD. The fact defendant needed to repair
numerous defects in a brief time frame is conclusive evidence of negligent
maintenance.    Carter v. Highway Department Transportation O.D.O.T. (1997), 97-
03280-AD; Reese v. Ohio Dept. of Transportation (1999), 99-05697-AD. Furthermore,
the trier of fact finds plaintiff’s car struck a pothole which had been most recently
patched on January 18, 2011. A pothole patch which deteriorates in less than ten days
is prima facie evidence of negligent maintenance.        See Matala v. Department of
Transportation, 2003-01270-AD, 2003-Ohio-2618; Schrock v. Ohio Dept. of Transp.,
2005-02460-AD, 2005-Ohio-2479.
      {¶11} The fact the pothole plaintiff’s car struck deteriorated in a time frame of
slightly more than ten days does not negate application of the standard expressed in
Matala. See Marsh v. Ohio Dept. of Transp., 2006-01912-AD, 2006-Ohio-7204.
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Case No. 2006-03532-AD                  -5-              MEMORANDUM DECISION



      {¶12}       Negligence in this action has been proven and defendant is liable to
plaintiff for all damages claimed, $725.38, plus the $25.00 filing fee costs. 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




JEWELIENNE UNDERWOOD

      Plaintiff
Case No. 2006-03532-AD                      -6-               MEMORANDUM DECISION



          v.

OHIO DEPT. OF TRANSPORTATION

          Defendant

          Case No. 2011-03782-AD

Acting 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 $750.38, which includes the filing fee. Court costs are
assessed against defendant.




                                            DANIEL R. BORCHERT
                                            Acting Clerk

Entry cc:

Jewelienne Underwood                        Jerry Wray, Director
R.R. 2 Box 294 A                            Department of Transportation
Colliers, West Virginia 26035               1980 West Broad Street
                                            Columbus, Ohio 43223
SJM/laa
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Case No. 2006-03532-AD           -7-   MEMORANDUM DECISION



6/9
Filed 7/18/11
Sent to S.C. reporter 10/13/11
