[Cite as Williams v. Ohio Dept. of Transp., 2010-Ohio-6335.]

                                       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




DENNIS WILLIAMS

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-06184-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Dennis Williams, filed this action against defendant, Department
of Transportation (ODOT), contending that his 2002 Mercury Sable was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 71 in Cuyahoga County. In his complaint, plaintiff described the
particular damage event noting that: “I was traveling N. Bound on I-71 exiting off I-71 to
490 Exit I hit a chuck hole which broke my Rt. front strut, spring, mount damaged tire.”
In his complaint, plaintiff recorded that the damage incident occurred “[o]n Saturday
April 27, 2010 4:35 p.m.” Plaintiff seeks recovery of damages in the amount of $907.20,
the cost of replacement parts and related repair expenses he incurred on April 7, 2010
when he paid to have his car repaired. When the 2002 Mercury Sable was received for
repair on March 29, 2010 the vehicle had an odometer reading of 114,416 miles. The
filing fee was paid.        Defendant advised that plaintiff reported his damage incident
occurred on Saturday, March 27, 2010 at approximately 4:34 p.m. and he telephoned
ODOT on April 5, 2010 to complaint that his car was damaged by “potholes while on the
ramp from 71 NB to 480 EB.”
       {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of any roadway defects on Interstate 71 prior to plaintiff’s
March 27, 2010 incident. Defendant related that ODOT’s “investigation indicates that
the location of Plaintiff’s William’s incident would be at approximately state milepost
247.53 or county milepost 18.87 on I-71 in Cuyahoga County.”              Defendant denied
receiving any prior calls or complaints about a pothole or potholes in the vicinity of that
location despite the fact that “[t]his section of roadway has an average daily traffic
count” of over 133,000 vehicles. Defendant asserted that plaintiff did not offer any
evidence to establish the length of time that any pothole existed in the vicinity of
milepost 247.53 on Interstate 71 prior to 4:35 p.m. on March 27, 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} Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Cuyahoga 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 March 27, 2010. The claim file is devoid
of any inspection record. Defendant argued that plaintiff has failed to offer any evidence
to prove his property damage was attributable to any conduct on the part of ODOT
personnel. Defendant asserted that “I-71 was in good condition at the time and in the
general vicinity of plaintiff’s incident.” Defendant stated that, “[a] review of the six-month
maintenance history (record submitted) for the area in question reveals that three (3)
pothole patching operations were conducted in the general vicinity and the last repair
was on February 5, 2010.” Earlier patching operations were performed on December
22, 2009 and January 15, 2010. The submitted “Maintenance History” reflects pothole
patching operations and no other activity. Defendant noted, “that if ODOT personnel
had detected any defects they would have been promptly scheduled for repair.”
       {¶ 4} Plaintiff filed a response asserting that the pothole his vehicle struck “still
exists (with no sign of asphalt repair).” Plaintiff did not offer any evidence to establish
the length of time the particular pothole existed prior to 4:35 p.m. on March 27, 2010.
       {¶ 5} 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.
      {¶ 6} 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.
      {¶ 7} 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 conditions or defects 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
potholes on Interstate 71 prior to the afternoon of March 27, 2010.
      {¶ 8} Therefore, to find liability, plaintiff must prove that ODOT had constructive
notice of the defects.   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 defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458.
      {¶ 9} In order for there to be constructive notice, plaintiff must show 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 . Size of the defect 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. “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, 31 Ohio Misc. 2d 1, 31
OBR 64, 507 N.E. 2d 1179.         “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. No evidence has shown that
ODOT had constructive notice of the pothole.
       {¶ 10} 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 on various occasions 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 conditions. 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.
       {¶ 11} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained known hazardous roadway conditions. Plaintiff failed
to prove that 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




DENNIS WILLIAMS

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-06184-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:

Dennis Williams                                 Jolene M. Molitoris, Director
3817 Brendan Lane #6                            Department of Transportation
N. Olmsted, Ohio 44070                          1980 West Broad Street
                                 Columbus, Ohio 43223
RDK/laa
7/15
Filed 9/8/10
Sent to S.C. reporter 12/17/10
