[Cite as Pare v. Ohio Dept. of Transp., 2010-Ohio-6645.]

                                       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




DANIELLE PARE

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2010-06460-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Danielle Pare, filed this action against defendant, Department of
Transportation (ODOT), contending her automobile was damaged as a proximate cause
of negligence on the part of ODOT in maintaining a hazardous condition on Interstate
75 North in Hamilton County.               Specifically, plaintiff related the right rear rim and
windshield on her car were damaged when the vehicle struck “a large pothole” on
Interstate 75 North at the “15.8 mile marker where (the) Travelodge sign (is) between
exit 15 and exit 16.” Plaintiff recalled the damage incident occurred on April 1, 2010 at
approximately 6:30 a.m. and noted ODOT personnel had previously patched potholes
on the particular section of Interstate 75 prior to the date of her damage occurrence. In
her complaint, plaintiff requested damages in the amount of $1,396.98, the stated cost
of a replacement rim and windshield. Plaintiff did not provide any evidence other than
her own assertion to support the amount of damages claimed. Also, in the complaint
plaintiff acknowledged she maintains insurance coverage for automotive repair with a
$500.00 deductible provision and admitted she has received $424.53 from her insurer1
“as a result of the described incident above.” 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 April 1, 2010 described occurrence. Defendant located the particular pothole
“at milepost 15.80 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 (April 1, 2010)
incident.”    Defendant submitted a copy of “Maintenance Records” recording ODOT
maintenance activity on Interstate 75 from October 1, 2009 to April 1, 2010.                   The
submitted document shows ODOT personnel performed pothole patching operations in
the vicinity of plaintiff’s incident on March 2, 2010, March 3, 2010, and March 4, 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 at milepost 15.80 on Interstate 75 North the last time that section of roadway
was inspected prior to April 1, 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


       1
            R.C. 2743.02(D) provides in pertinent part:
          “(D) Recoveries against the state shall be reduced by the aggregate of insurance proceeds,
disability award, or other collateral recovery received by the claimant.”
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




DANIELLE PARE

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-06460-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:

Danielle Pare                                     Jolene M. Molitoris, Director
227 Foote                                         Department of Transportation
Bellevue, Kentucky 41073                          1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
9/15
Filed 10/28/10
Sent to S.C. reporter 2/2/11
