[Cite as Muddiman v. Ohio Dept. of Transp., Dist. 8, 2011-Ohio-2121.]

                                      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




RICHARD A. MUDDIMAN

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

       Defendant

Case No. 2010-11021-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Richard A. Muddiman, filed this action against defendant,
Department of Transportation (ODOT), contending his 1999 Dodge Avenger was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition of Interstate 75 North in Hamilton County. Specifically, plaintiff
related the suspension on his Dodge Avenger was substantially damaged when the
vehicle was “swallowed by a large (unforseen) sink hole” that was located near the
Sharon Road Exit on Interstate 75. Plaintiff pointed out the described damage-causing
roadway defect (sink hole) “appeared to have been recently repaired.”                         With his
complaint, plaintiff attached photographs depicting the particular roadway defect. The
trier of fact finds the defect depicted is a large pothole that had been previously patched
and the patching material had deteriorated forming the defect shown. Plaintiff recalled
his damage event occurred on July 24, 2010 at approximately 12:00 a.m. Submitted
documentation from defendant (Maintenance Records) noted ODOT crews last patched
potholes prior to July 24, 2010 in the vicinity of plaintiff’s incident on May 7, 2010.
According to the submitted “Maintenance Records,” the last activity ODOT crews
conducted on Interstate 75 in the vicinity of plaintiff’s incident prior to July 24, 2010, was
on July 16, 2010 when “Litter Pickup” occurred. Plaintiff argued the damage to his
vehicle was the result of negligence on the part of ODOT in conducting pothole patching
operations and he consequently filed this complaint seeking to recover $894.36, the
cost of automotive repair and related expenses he incurred. 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 July 24, 2010 described occurrence. Defendant located the particular pothole
“at milepost 15.39 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 (July 24, 2010)
incident.”    Defendant submitted a copy of “Maintenance Records” recording ODOT
maintenance activity on Interstate 75 from January 24, 2010 to July 24, 2010. The
submitted documents show ODOT personnel performed pothole patching operations in
the vicinity of plaintiff’s incident on March 2, 2010, March 3, 2010, March 4, 2010, April
14, 2010, April 15, 2010, April 20, 2010, May 5, 2010, and May 7, 2010. Defendant
denied receiving any prior complaints of a pothole at milepost 15.39 on Interstate 75
despite the fact this section of roadway has an average daily traffic volume of over
14,000 vehicles.
       {¶ 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 at milepost 15.39 on Interstate 75 North the last time that section of roadway
was inspected prior to July 24, 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 vehicle
struck “existed for only a short time before the incident.”
       {¶ 4} Plaintiff filed a response advising his property damage was caused by “a
terrible patch job” of a roadway defect on the part of ODOT.               Plaintiff asserted
defendant was negligent in “not fixing the road correctly.”            Additionally, plaintiff
contended that ODOT should have inspected the subject roadway on a more frequent
basis considering the high daily traffic volume creating conditions of surface pavement
deterioration.   Plaintiff suggested defendant should have known of the pothole at
milepost 15.69 considering the large size of that particular defect.
       {¶ 5} 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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he 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.
       {¶ 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 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.
       {¶ 8} “[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 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; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
       {¶ 9} 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 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.
       {¶ 10} Plaintiff may establish liability on the part of defendant by providing
evidence of negligent maintenance. Weitzman v. Ohio Dept. of Transp., Ct. of Cl. No.
2008-07942-AD, jud. aff. (4-8-09), 2008-Ohio-7129. There is evidence in the present
claim that the pothole plaintiff’s car struck may have been previously patched on May 7,
2010 and the patch had deteriorated. However, evidence proving plaintiff’s car struck a
deteriorated repair does not provide conclusive proof of negligent maintenance.          A
pothole patch that deteriorates in less than ten days is prima facie evidence of negligent
maintenance. See Matala v. Ohio Department of Transportation, Ct. of Cl. No. 2003-
01270-AD, 2003-Ohio-2618. However, a pothole patch which may or may not have
deteriorated over a longer time frame does not constitute, in and of itself, conclusive
evidence of negligent maintenance.           See Edwards v. Ohio Department of
Transportation, District 8, Ct. of Cl. No. 2006-01343-AD, jud, 2006-Ohio-7173. Plaintiff
has failed to prove that the pothole that damaged his car had been previously patched
after May 7, 2010 or was patched with material subject to rapid deterioration since the
last previous pothole repair made by ODOT in the vicinity of his incident was May 7,
2010. Furthermore, plaintiff also failed to establish the general time frame when the
roadway condition encountered appeared.        Plaintiff, in the instant claim, has not
produced sufficient 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.




                              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




RICHARD A. MUDDIMAN

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

      Defendant

Case No. 2010-11021-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:

Richard A. Muddiman                             Jerry Wray, Director
6349 Mullen Road                                Department of Transportation
Cincinnati, Ohio 45247                          1980 West Broad Street
                                                Columbus, Ohio 43223
RDK/laa
1/25
Filed 2/16/11
Sent to S.C. reporter 4/29/11
