[Cite as Frey v. Ohio Dept. of Transp., Dist. 8, 2011-Ohio-2495.]

                                        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




DAVID A. FREY

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 8

        Defendant

Case No. 2010-10211-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, David A. Frey, filed this action against defendant, Department of
Transportation (ODOT), contending that his 1998 Audi-A6 Avant Quattro 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 advised that
the left front strut and left speed sensor on his car were damaged when the vehicle
struck a large pothole near milepost 15.0. Plaintiff recalled that the described damage
incident occurred on February 17, 2010 at approximately 3:45 p.m. Plaintiff requested
damages in the amount of $583.90, the cost of replacement parts and repairing
expenses he incurred resulting from the February 17, 2010 incident. Plaintiff had his
automobile repaired in August 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 17, 2010 described occurrence. Defendant located the particular
pothole “at milepost 15.0 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 17, 2010) incident.”       According to ODOT records, three complaints of
potholes were received for Interstate 75 in Hamilton County for the period from August
17, 2009 to February 17, 2010. Defendant noted that none of the prior complaints “are
in the same location as plaintiff’s incident or at the same time frame as plaintiff’s
incident.”   Defendant submitted a copy of “Maintenance Records” recording ODOT
maintenance activity on Interstate 75 from August 17, 2009 to February 17, 2010. The
submitted records show that ODOT patched potholes in the northbound lanes of
Interstate 75 from milepost 0.0 to milepost 15.0 on February 11, 2010 and February 12,
2010.
        {¶ 3} Defendant denied that ODOT negligently maintained Interstate 75 in
Hamilton County. Defendant noted that 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 15.0 on Interstate 75 South the last time that
section of roadway was inspected prior to February 17, 2010. The claim file is devoid of
any copy of ODOT Hamilton County inspection records. Defendant asserted that the
particular location of Interstate 75 is a well patrolled location and suggested that 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, 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.
        {¶ 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, 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.
      {¶ 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




DAVID A. FREY

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 8

      Defendant

Case No. 2010-10211-AD

Clerk Miles C. Durfey


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.
                                ________________________________
                                MILES C. DURFEY
                                Clerk

Entry cc:

David A. Frey                   Jerry Wray, Director
1477 Rugg Street                Department of Transportation
Cincinnati, Ohio 45231          1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
2/16
Filed 3/4/11
Sent to S.C. reporter 5/16/11
