[Cite as Wieman v. Ohio Dept. of Transp., 2010-Ohio-6327.]

                                      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




JOHN E. WIEMAN

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2010-04076-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, John E. Wieman, filed this action against defendant, Department
of Transportation (ODOT), contending that his 1989 Honda Accord was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on State Route 264 in Hamilton County. In his complaint, plaintiff provided a
narrative description of the particular damage event noting that: “[o]n January 7, 2010
at 8:45 p.m. during a 5-7 inch snowfall, while on State Route 264 (6300 Block of
Glenway Ave.) I was heading north and hit an unseen pothole on the snow covered
pavement.” Plaintiff requested damage recovery in the amount of $591.29, the total
cost of replacement parts and related repair expense. Payment of the filing fee was
waived.
        {¶ 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 January 7, 2010 described occurrence.            Defendant located the pothole
“between milepost 8.7 and 8.8 on SR 264 in Hamilton County” and advised that “ODOT
did not receive any reports of the pothole or have any knowledge of the pothole prior to
the (January 7, 2010) incident.” Defendant asserted that plaintiff failed to produce any
evidence to establish the length of time the pothole existed on State Route 264 prior to
his damage occurrence. Defendant suggested that “it is likely the pothole existed for
only a short time before the incident.”
       {¶ 3} Furthermore, defendant argued that plaintiff failed to prove that the
roadway was negligently maintained. Defendant explained that the ODOT “Hamilton
County Manager inspects all state roadways within the county at least two times a
month.” Apparently no potholes were detected between mileposts 8.7 and 8.8 on State
Route 264 the last time that section of roadway was inspected before January 7, 2010.
The claim file is devoid of any roadway inspection records.      Defendant did submit
“Maintenance Records” for State Route 264 covering the period from July 7, 2009 to
January 7, 2010. These records show that pothole patching repairs were needed in the
vicinity of mileposts 8.7 and 8.8 on August 18, 2009 and December 30, 2009.
       {¶ 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




JOHN E. WIEMAN

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

      Case No. 2010-04076-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:

John E. Wieman                                  Jolene M. Molitoris, Director
5745 Green Acres Court           Department of Transportation
Cincinnati, Ohio 45248           1980 West Broad Street
                                 Columbus, Ohio 43223
RDK/laa
8/9
Filed 9/2/10
Sent to S.C. reporter 12/17/10
