[Cite as Garner v. Dept. of Transp., 2010-Ohio-6554.]

                                       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




SHERYL GARNER

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-05153-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Sheryl Garner, filed this action against defendant, Department of
Transportation (ODOT), contending her 2001 Audi A6 was damaged as a proximate
cause of negligence on the part of ODOT in maintaining a hazardous condition on
Interstate 75 South in Hamilton County. Specifically, plaintiff related the front tire on her
vehicle was damaged as a result of striking a pothole located in the roadway right lane
“between the 9.8-9.7 mm SB I-75.” Plaintiff filed this complaint requesting damage
recovery in the amount of $81.25, the total cost of a replacement tire needed resulting
from the described incident. Plaintiff recalled that her property damage event occurred
on February 18, 2010. The filing fee was paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s February 18, 2010 described occurrence. Defendant located the particular
pothole “between mileposts 9.80 and 9.70 on I-75 in Hamilton County” and advised that
“ODOT did not receive any reports of the pothole or have knowledge of the pothole prior
to the (February 18, 2010) incident.” Defendant submitted a copy of “Maintenance
Records” recording ODOT maintenance activity on Interstate 75 from August 18, 2009
to February 18, 2010. The submitted document shows ODOT personnel performed
pothole patching operations in the vicinity of plaintiff’s incident on January 12, 2010 and
January 13, 2010.
       {¶ 3} Defendant denied ODOT negligently maintained Interstate 75 in Hamilton
County.    Defendant noted the ODOT “Hamilton County Manager inspects all state
roadways within the county at least two times a month.” Apparently no potholes were
discovered between mileposts 9.80 and 9.70 on Interstate 75 South the last time that
section of roadway was inspected prior to February 18, 2010. The claim file is devoid of
any copy of ODOT Hamilton County inspection records.                Defendant asserted the
particular location of Interstate 75 is a well patrolled location and suggested the pothole
plaintiff’s car struck “existed for only a short time before the incident.”
       {¶ 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. 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.             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.
       {¶ 5} 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.
      {¶ 6} “[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, 48 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 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; Gelarden v. Ohio Dept. of Transp., Dist. 4, Ct. of Cl.
No. 2007-02521-AD, 2007-Ohio-3047.
      {¶ 7} 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




SHERYL GARNER

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-05153-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:
Sheryl Garner                    Jolene M. Molitoris, Director
4082 Spanish Bay Drive           Department of Transportation
Mason, Ohio 45040                1980 West Broad Street
                                 Columbus, Ohio 43223
RDK/laa
8/19
Filed 9/20/10
Sent to S.C. reporter 12/29/10
