[Cite as Kammerman v. Ohio Dept. of Transp., 2010-Ohio-5577.]

                                     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




STEVEN J. KAMMERMAN

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2010-02103-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Steven J. Kammerman, filed this action against defendant,
Department of Transportation (ODOT), contending that his 1990 Nissan Maxima SE
was damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on Interstate 71 South in Hamilton County. Specifically, plaintiff
related that the left front wheel, tire, and front struts on his car were damaged as a
result of striking a pothole located “on the entrance ramp to I-71 southbound at Exit 11
(Kenwood Rd.).” Plaintiff filed this complaint requesting damage recovery in the amount
of $864.63, the total cost of replacement parts and related repair expenses needed
resulting from the described incident. Plaintiff recalled that his property damage event
occurred on February 2, 2008 at approximately 11:00 p.m. The filing fee was paid and
plaintiff requested reimbursement 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 February 2, 2008 described occurrence. Defendant located the pothole “at
milepost 11.81 on I-71 in Hamilton County” and advised that ODOT “phone logs for the
district office responsible for Hamilton County show that no pothole complaints are on
file” regarding a defect at milepost 11.81 on Interstate 71.      Defendant recorded no
pothole complaints at that location despite the fact that “[t]his section of roadway has an
average daily traffic count between 108.170 and 120,810 vehicles.” Defendant argued
that plaintiff did not offer any evidence to establish the length of time that the pothole
was present on the roadway prior to 11:00 p.m. on February 2, 2008. Defendant further
argued that plaintiff did not present any evidence to prove his property damage was
attributable to any conduct on the part of ODOT personnel.
       {¶ 3} Furthermore, defendant asserted that plaintiff failed to produce any
evidence to show the roadway was negligently maintained by ODOT. Defendant noted
that the ODOT “Hamilton 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 11.81 on Interstate 71 the last time
that section of roadway was inspected prior to February 2, 2008. The claim file is
devoid of any Hamilton County inspection records.        Defendant pointed out that the
particular location of Interstate 71 “was in relatively good condition at the time of
plaintiff’s incident.”   Defendant stated “that if ODOT personnel had detected any
potholes they would have been reported and promptly scheduled for repair.”
       {¶ 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, “[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 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




STEVEN J. KAMMERMAN

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

Case No. 2010-02103-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:

Steven J. Kammerman              Jolene M. Molitoris, Director
7222 Creekview Drive #1          Department of Transportation
Cincinnati, Ohio 45247           1980 West Broad Street
                                 Columbus, Ohio 43223
RDK/laa
6/23
Filed 7/28/10
Sent to S.C. reporter 11/15/10
