[Cite as Overfield v. Ohio Dept. of Transp., 2011-Ohio-4779.]



                                       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




THOMAS P. OVERFIELD

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

        Case No. 2010-12681-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Thomas Overfield, filed this action against defendant, Department
of Transportation (ODOT), contending that his 2010 Chrysler PT Cruiser was damaged
as a proximate result of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 75 North in Montgomery County. Specifically, plaintiff noted that
his car was damaged when the vehicle struck a pothole in the center lane south of the
Dayton city limits on Interstate 75 North. Plaintiff recalled that his damage incident
occurred on November 28, 2010 at approximately 9:30 p.m. In his complaint, plaintiff
requested damages in the amount of $1,001.31, the cost of replacement parts and
related repair expenses. Plaintiff paid the filing fee.
        {¶2}     Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the damage-causing pothole on Interstate 75
North prior to plaintiff’s occurrence. Defendant advised that ODOT “records indicate
that no calls or complaints were received regarding the pothole in question” prior to
plaintiff’s damage event.             Defendant further advised that ODOT’s “investigation
indicates that the location of plaintiff’s incident would be at state milepost 51.30 or
county milepost 10.40 on I-75 in Montgomery County.” Defendant denied receiving any
prior notice of the pothole at milepost 51.30 despite the fact that the particular “section
of roadway on I-75 has an average daily traffic count between 99,440 and 113,330
vehicles.” Defendant argued that plaintiff failed to produce any evidence to establish
the length of time that the pothole at milepost 51.30 existed prior to 9:30 p.m. on
November 28, 2010.       Defendant suggested that “it is more likely than not that the
pothole existed in that location for only a relatively short amount of time before plaintiff’s
incident.”
       {¶3}   Defendant explained that ODOT first received notice of the pothole at
milepost 51.30 when ODOT Montgomery County Manager, John Glover, was contacted
by the City of Dayton Police and informed that the pothole had been patched by City of
Dayton road crews. Apparently the problem with the pothole at milepost 51.30 was
addressed by City of Dayton personnel after plaintiff’s damage occurrence. Defendant
described the repair performed by City of Dayton personnel as a “temporary patch.”
Defendant submitted an e-mail from John Glover referencing his experience with the
pothole at milepost 51.30. Glover recorded that he received a courtesy call from the
City of Dayton Police and was told that “they had responded and that the situation was
temporarily secure.” Glover also recorded that, “I was checking the location on my way
to work and began planning the repair.”
       {¶4}   Defendant asserted that plaintiff failed to offer any evidence to prove that
his car was damaged as a proximate cause of negligent roadway maintenance on the
part of ODOT. Defendant argued that plaintiff failed to prove his property damage was
the result of any conduct attributable to ODOT personnel. Defendant pointed out that
ODOT “Montgomery County crews travel each state highway twice a month in
Montgomery County and look for potholes, low berms, and other safety hazards and
records any deficiencies on the Bi-Weekly Road Inspection Reports” (copies submitted).
According to the submitted records, Interstate 75 North including the area around
milepost 51.30 was last inspected prior to November 28, 2010 on November 22, 2010.
No roadway defects (pothole) at milepost 51.30 were discovered incident to the
November 22, 2010 inspection.         Defendant related, that “if ODOT personnel had
detected any defects they would have been promptly scheduled for repair.”
       {¶5}   Plaintiff did not file a response. Plaintiff did not provide any evidence to
establish the length of time that the particular damage-causing pothole at milepost
51.30 on Interstate 75 North existed prior to 9:30 p.m. on November 28, 2010.
      {¶6}   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.
      {¶7}   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.       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 working 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
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 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. Knight v. Ohio Dept. of Transp., Ct. of Cl.
No. 2010-03690-AD, 2010-Ohio-6546, Williams v. Ohio Dept. Of Transp., Ct. of Cl. No.
2010-12893-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




THOMAS P. OVERFIELD
        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

         Case No. 2010-12681-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:

Thomas P. Overfield                               Jerry Wray, Director
4224 Pleasanton Road                              Department of Transportation
Englewood, Ohio 45322                             1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
4/14
Filed 6/14/11
Sent to S.C. reporter 9/21/11
