[Cite as Vergara v. Ohio Dept. of Transp., 2010-Ohio-6643.]

                                      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




LILIA VERGARA

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-06168-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Lilia Vergara, filed this action against defendant, Department of
Transportation (ODOT), contending her 2005 Dodge Magnum was substantially
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on US Route 33 in Franklin County. Specifically, plaintiff related
her vehicle was damaged when it struck a large pothole “located south of Fishinger Rd
in front of Zollinger and Clifton” on US 33.                  Plaintiff recalled her damage incident
occurred on March 30, 2010 at approximately 8:30 p.m.                     In her complaint, plaintiff
requested damage recovery in the amount of $938.70, the total cost of replacement
parts and related repair 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 the particular damage-causing pothole prior to
plaintiff’s March 30, 2010 described occurrence.                    Defendant located the pothole
“between mileposts 9.65 and 9.76 on US 33 in Franklin County” and advised that
“ODOT did not receive any reports of the pothole or have any knowledge of the pothole
prior to the (March 30, 2010) incident.”       Defendant asserted that plaintiff failed to
produce any evidence to establish the length of time the pothole existed on US Route
33 prior to her 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 that the
roadway was negligently maintained. Defendant explained that the ODOT “Franklin
County Manager inspects all state roadways within the county at least two times a
month.” Apparently no potholes were detected between mileposts 9.65 and 9.76 on US
Route 33 the last time that section of roadway was inspected before March 30, 2010.
The claim file is devoid of any roadway inspection records. Defendant did submit a
“Maintenance History” for US Route 33 covering the period from September 30, 2009 to
March 30, 2010. These records show that pothole patching repairs were needed in the
vicinity of mileposts 9.65 and 9.76 on January 19, 2010, January 22, 2010, January 27,
2010, February 23, 2010 and March 12, 2010.
       {¶ 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 79, 472 N.E. 2d 707. Plaintiff has
the burden of proving, by a preponderance of the evidence, that she suffered a loss and
that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio State
University (1977), 76-0368-AD. 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.    Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the pothole must be presented.
      {¶ 7} “[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; Gerlarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
      {¶ 8} 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 pothole
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 pothole was 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 pothole. 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 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




LILIA VERGARA

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-06168-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:

Lilia Vergara                  Jolene M. Molitoris, Director
3579 Edson Drive               Department of Transportation
Columbus, Ohio 43228           1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
9/15
Filed 10/15/10
Sent to S.C. reporter 2/2/11
