[Cite as Kanter v. Ohio Dept. of Transp., 2011-Ohio-1122.]

                                       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




MORTON J. KANTER

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-10696-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Morton J. Kanter, filed this action against defendant, Department
of Transportation (ODOT), contending two tires on his 2010 Honda Accord were
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on Interstate 270 in Franklin County.               Plaintiff described his
damage occurrence noting his car “hit a pothole or rut” in the roadway on Interstate 270
South in the left lane at some point between Morse Road and the Interstate 670 West
exit. Plaintiff recalled his damage incident occurred “[o]n the evening of August 30,
2010.” In his complaint, plaintiff claimed damages in the amount of $548.54, the cost of
replacement tires and related repair expenses. The $25.00 filing fee was paid and
plaintiff requested recovery of that cost along with his damage claim.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s August 30, 2010 described occurrence.            Defendant located the particular
pothole “at milepost 35.38 on I-270 in Franklin County.”            Defendant explained that
ODOT records show no reports of a pothole at the location recorded prior to plaintiff’s
damage event. Defendant related that ODOT received fourteen complaints of potholes
on Interstate 270 “from July 1 to August 26, 2010,
and none of them are in the same location as plaintiff’s incident.” Defendant advised no
prior reports of a pothole at milepost 35.38 were received despite the fact “[t]his section
of roadway has an average daily traffic count between 120,980 and 135,820 vehicles.”
       {¶ 3} Defendant argued that plaintiff did not provide any evidence to establish
the length of time the particular pothole at milepost 35.38 was present on the roadway
prior to August 30, 2010. Defendant suggested that, “it is more likely than not the
pothole existed in that location for only a relatively short amount of time before plaintiff’s
incident.”
       {¶ 4} Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Franklin 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 in the vicinity of plaintiff’s incident the last time that section of
roadway was inspected prior to August 30, 2010.            Defendant asserted that, “[t]he
roadway was in relatively good condition at the time of plaintiff’s incident.” Defendant
argued plaintiff failed to prove his property damage was attributable to any conduct on
the part of ODOT personnel.        Defendant stated that, “[a] review of the six-month
maintenance history (record submitted) for the area in question reveals that six (6)
pothole patching operations were conducted in the same location as plaintiff’s incident
which was the southbound direction.”        Defendant’s submitted records show ODOT
crews patched potholes in the vicinity of plaintiff’s damage occurrence on March 20,
2010, March 29, 2010, May 13, 2010, May 28, 2010, August 25, 2010, and August 26,
2010. Defendant noted, “that if ODOT personnel had detected any defects they would
have been promptly scheduled for repair.”           Defendant’s submitted “Maintenance
History” only addressed pothole patching operations conducted on Interstate 270
between February 28, 2010 and August 26, 2010.              Defendant did not submit any
documentation showing the date when the pothole at milepost 35.38 was reported or
repaired. The claim file is devoid of any inspection record.
       {¶ 5} Plaintiff filed a response.      Plaintiff did not produce any evidence to
establish the length of time the particular pothole at milepost 35.38 on Interstate 270
existed prior to 9:39 p.m. on August 30, 2010; the stated time and date of the incident
forming the basis of this claim.
       {¶ 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. 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.
       {¶ 8} 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.
       {¶ 9} “[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.
       {¶ 10} 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.
       {¶ 11} Generally, in order to recover in a suit involving damage proximately
caused by roadway conditions including potholes, plaintiff must prove that either: 1)
defendant had actual or constructive notice of the potholes 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. The fact that defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident in the southbound lanes of
Interstate 270 on August 26, 2010 does not prove negligent maintenance of the
roadway on the part of ODOT. 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 plaintiff may
have suffered from the pothole.
       {¶ 12} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained a known hazardous roadway condition. Plaintiff failed
to prove his property damage was connected to any conduct under the control of
defendant, or that defendant was negligent in maintaining the roadway area, or that
there was any actionable negligence on the part of defendant. Taylor v. Transportation
Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-
10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD.
Consequently, plaintiff’s claim is denied.




                                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




MORTON J. KANTER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

       Case No. 2010-10696-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:

Morton J. Kanter               Jolene M. Molitoris, Director
103 S. Dawson Avenue           Department of Transportation
Columbus, Ohio 43209           1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
12/14
Filed 1/7/11
Sent to S.C. reporter 3/4/11
