[Cite as Branham v. Ohio Dept. of Transp., 2011-Ohio-6927.]



                                     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




DION BRANHAM

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2011-04657-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, Dion Branham, filed this action against defendant, Ohio
Department of Transportation (ODOT), contending that his vehicle was damaged as a
proximate result of negligence on the part of ODOT in maintaining a hazardous
condition on Montgomery Road.               In his complaint, plaintiff described the particular
damage event noting that he hit a pothole “near the 7600 block of Montgomery Road.”
Plaintiff stated that “[t]here were actually two potholes as I missed one but hit the other
one.” Plaintiff recalled the incident occurred on March 1, 2011, and he incurred damage
to his tire and rim. Plaintiff seeks recovery of damages for a replacement tire and
vehicle repair costs. The filing fee was paid.
        {¶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 incident.      Defendant related that plaintiff’s incident occurred “between
mileposts 10.51 and 10.55 on US 22 in Hamilton County.” Defendant denied receiving
any prior calls or complaints about a pothole or potholes in the vicinity of that location.
Defendant asserted that plaintiff did not offer any evidence to establish the length of
time the pothole existed prior to 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 “Hamilton County Manager inspects all state roadways within the county at least
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 1, 2011. 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 stated that, “[a] review of the six-month
maintenance history [record submitted] also reveals that general maintenance and
inspection is conducted to ensure a properly maintained roadway.” Plaintiff did not file a
response.
       {¶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. 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.
       {¶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 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
pothole on US 22 prior to March 1, 2011.
        {¶7}    Therefore, to find liability, plaintiff must prove that ODOT had constructive
notice of the defect.      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.
        {¶8}    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 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.
        {¶9}    In another claim, 2011-06005-AD, plaintiff Zinnecker asserted he struck a
pothole near 7604 Montgomery Road, on February 24, 2011, at approximately 9:00
p.m. Defendant located that incident at milepost 10.55 on US 22 in Hamilton County. In
addition, plaintiff Patton filed a claim, 2011-03499-AD, contending that his vehicle was
damaged on February 28, 2011, at approximately 4:30 p.m. Plaintiff located the pothole
on SR 22 in Hamilton County in the northbound lane in front of 7604 Montgomery Road.
        {¶10} The information in this claim does not indicate the direction plaintiff was
traveling and insufficient evidence has been presented to establish that the defect
plaintiff struck on March 1, 2011, is the same pothole referenced in the preceding two
cases or that the pothole was present on the roadway from one to five days prior to
plaintiff’s damage event.      Accordingly, the court is unable to determine whether
sufficient time elapsed from the time the pothole first appeared until plaintiff’s incident to
establish constructive notice to defendant. See Pierson v. Ohio Dept. of Transp., Ct. of
Cl. No. 2008-10048-AD, 2009-Ohio-2763.
       {¶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. 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.
       {¶12} 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




DION BRANHAM

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2011-04657-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:

Dion Branham                                      Jerry Wray, Director
6702 Hampton Drive                                Department of Transportation
Cincinnati, Ohio 45236                            1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
8/15
Filed 8/23/11
Sent to S.C. reporter 1/19/12
