[Cite as Evans v. Ohio Dept. of Transp., 2010-Ohio-2025.]

                                      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




R. SCOTT EVANS

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-07776-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} “1)      On August 1, 2009, at approximately 8:00 a.m., plaintiff, R. Scott
Evans, was traveling on State Route 608 “south of Girdled Road in Concord, Ohio”
when his 2007 Ford Five Hundred struck “Potholes/Uneven Road” causing tire and rim
damage to the vehicle.
        {¶ 2} “2)      Plaintiff asserted that the damage to his car was proximately caused
by negligence on the part of defendant, Department of Transportation (ODOT), in failing
to maintain the roadway free of defective conditions.           Plaintiff filed this complaint
seeking to recover $431.20 for replacement parts and related repair expenses he
incurred. The filing fee was paid.
        {¶ 3} “3)      Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of a defect on the roadway prior to plaintiff’s August 1,
2009 property damage event.                  Defendant explained that ODOT records (copy
submitted) show no complaints were received regarding the particular defect that
plaintiff’s car struck, which defendant located at milepost 1.80 on State Route 608 in
Lake County. Defendant contended that plaintiff failed to produce sufficient evidence to
establish the length of time the “Potholes/Uneven Road” conditions existed prior to 8:00
a.m. on August 1, 2009. Defendant suggested that “it is likely the pothole existed for
only a short time before the incident.”
       {¶ 4} “4)    Defendant denied that the roadway was negligently maintained.
Defendant advised that the ODOT “Lake County Manager inspects all state roadways
within the county at least two times a month.” Apparently, no defective conditions were
discovered at milepost 1.80 on State Route 608 the last time that specific section of
roadway was inspected before August 1, 2009. The file is devoid of any inspection
record. Defendant’s maintenance record (copy submitted) show that ODOT crews last
patched potholes in the vicinity of plaintiff’s incident on April 16, 2009.
                                 CONCLUSIONS OF LAW
       {¶ 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
defect on State Route 608 prior to 8:00 a.m. on August 1, 2009.
       {¶ 7} Therefore, to find liability plaintiff must prove 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 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 apply 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 ODOT had
constructive notice of any roadway defect.
      {¶ 9} 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 record reflects no pothole repairs were
made in the vicinity of milepost 1.80 on State Route 608 between April 16, 2009 to
August 1, 2009 does not prove negligent maintenance of the roadway area on the part
of ODOT. Plaintiff has not produced sufficient 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.
Plaintiff has failed to introduce sufficient evidence to prove that defendant maintained a
known hazardous roadway condition.       Plaintiff has failed to prove that his property
damage was connected to any conduct under the control of defendant, that defendant
was negligent in maintaining the roadway area, or that there was any 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.


                               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




R. SCOTT EVANS

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2009-07776-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:

R. Scott Evans                                    Jolene M. Molitoris, Director
12305 Summerwood Drive                            Department of Transportation
Concord, Ohio 44077                               1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
12/29
Filed 1/22/10
Sent to S.C. reporter 5/7/10
