[Cite as Kota v. Ohio Dept. of Transp., 2010-Ohio-5219.]

                                       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




ANAND KOTA

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-01786-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       On January 20, 2010, at approximately 7:00 p.m., plaintiff, Anand
Kota, was traveling on State Route 750 in Delaware County, when his 2002 Mercedes
Benz E430 struck a pothole causing tire and wheel damage to the vehicle.
        {¶ 2} 2)       Plaintiff asserted that the damage to his car was proximately caused
by negligence on the part of defendant, Department of Transportation (ODOT), in failing
to maintain the roadway free of hazards such as potholes. Plaintiff filed this complaint
seeking to recover $802.33, the stated cost of replacement tires and related repair
expenses. The filing fee was paid.
        {¶ 3} 3)       Defendant explained that the pothole plaintiff’s vehicle struck had
been previously repaired on November 17, 2009 or November 24, 2009 and the repair
patch had deteriorated at sometime prior to 7:00 p.m. on January 20, 2010. Defendant
denied liability based on the contention that no ODOT personnel had any knowledge
that the pothole had reformed prior to plaintiff’s property damage occurrence.
Defendant asserted that plaintiff did not produce any evidence to establish the length of
time that the particular pothole existed prior to 7:00 p.m. on January 20, 2010.
Defendant contended that plaintiff failed to offer any evidence to prove his property
damage occurrence was attributable to conduct on the part of ODOT personnel.
Defendant located the damage-causing pothole “at milepost 4.43 on SR 750 in
Delaware County” and 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.”
Defendant explained that the ODOT “Delaware County Manager conducts roadway
inspections on all state roadways within the county on a routine basis, at least one to
two times a month.” Apparently no potholes were discovered at milepost 4.43 on State
Route 750 the last time that section of roadway was inspected before January 20, 2010.
Defendant’s maintenance records show that “one (1) pothole patching operations was
conducted in the same location as plaintiff’s incident.” The maintenance record (copy
submitted) indicates that ODOT crews patched a pothole in the area including milepost
4.43 on November 24, 2009. Defendant stated that, “if ODOT personnel had detected
any potholes they would have been reported and promptly scheduled for repair.”
                               CONCLUSIONS OF LAW
      {¶ 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, “[it] 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 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.
      {¶ 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 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.
       {¶ 9} Ordinarily in a claim involving roadway defects, plaintiff must prove that
either: 1) defendant had actual or constructive notice of the defective condition and
failed to respond in a reasonable time or responded in a negligent manner, or 2) that
defendant, in a general sense, maintains its highways negligently. Denis v. Department
of Transportation (1976), 75-0287-AD.      Defendant acknowledged that the damage-
causing pothole plaintiff’s vehicle struck was a defect that had been previously patched
and deteriorated. This fact alone does not provide proof of negligent maintenance. A
pothole patch that deteriorates in less than ten days is prima facie evidence of specific
negligent maintenance. See Matala v. Ohio Department of Transportation, Ct. of Cl.
No. 2003-01270-AD, 2003-Ohio-2618. However, a pothole patch that 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; Lutz v.
Ohio Dept. of Transp., Ct. of Cl. No. 2008-06873-AD, 2008-Ohio-7029; Clancy v. Ohio
Dept. of Transp., Ct. of Cl. No. 2009-01069-AD, 2009-Ohio-3034.            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




ANAND KOTA

      Plaintiff

      v.
OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-01786-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:

Anand Kota                                       Jolene M. Molitoris, Director
5329 Rosalind Blvd.                              Department of Transportation
Powell, Ohio 43065                               1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
5/18
Filed 6/21/10
Sent to S.C. reporter 10/22/10
