[Cite as Greenwald v. Dept. of Transp., 2010-Ohio-2030.]

                                      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




SHANE M. GREENWALD

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-08306-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)       On August 8, 2009, at approximately 12:30 a.m., plaintiff, Shane M.
Greenwald, was traveling west on US Route 30 in Columbiana County, when his 1997
Oldsmobile Achieva struck a pothole causing tire and wheel damage to the vehicle.
Plaintiff specifically located the damage-causing pothole at “just past the 10 mile
(Lisbon) exit sign . . . on a bridge.”
        {¶ 2} 2)       Plaintiff asserted the damage to his vehicle was proximately caused
by negligence on the part of defendant, Department of Transportation (ODOT), in failing
to maintain the roadway free of hazards such as potholes. Plaintiff filed this complaint
seeking to recover $601.56, for replacement parts, repair expenses, and related costs.
The filing fee was paid.
        {¶ 3} 3)       Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular pothole on US Route 30 prior to plaintiff’s
property damage event. Defendant explained ODOT records (copies submitted) show
no calls or complaints were received regarding the pothole plaintiff’s vehicle struck,
which defendant located at milepost 26.70 on US Route 30 in Columbiana County.
Defendant suggested it is likely the pothole existed for only a short time before the
incident. Defendant asserted plaintiff did not produce any evidence to establish the
length of time the pothole existed prior to 12:30 a.m. on August 8, 2009.
      {¶ 4} 4)    Defendant contended plaintiff failed to prove US Route 30 was
negligently maintained. Defendant observed the ODOT “Columbiana County Manager
inspects all state roadways within the county at least two times a month.” Apparently,
no potholes were discovered at milepost 26.70 on US Route 30 the last time that
section of roadway was inspected prior to August 8, 2009. The file is devoid of any
inspection record. Defendant’s submitted “Maintenance History” shows potholes were
patched in the vicinity of plaintiff’s incident on February 3, 2009, February 20, 2009,
March 17, 2009, and April 9, 2009. No patching operations were needed in the area
subsequent to April 9, 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 defendant had actual notice of the pothole
on US Route 30 prior to 12:30 a.m. on August 8, 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 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 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 ODOT
had constructive notice of the pothole.
      {¶ 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 defendant’s “Maintenance History” reflects no pothole
repairs were made in the vicinity of milepost 26.70 on US Route 30 between April 9,
2009 to August 7, 2009 does not prove negligent maintenance of the roadway area on
the part of ODOT. Plaintiff has not produced sufficient evidence to infer 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 defendant maintained a
known hazardous roadway condition. Plaintiff has failed to prove that this property
damage was connected to any conduct under the control of defendant, 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




SHANE M. GREENWALD

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2009-08306-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:

Shane M. Greenwald                              Jolene M. Molitoris, Director
39 Berry Lane                  Department of Transportation
Apt. 1                         1980 West Broad Street
Delmont, Pennsylvania 15626    Columbus, Ohio 43223
RDK/laa
12/29
Filed 1/20/10
Sent to S.C. reporter 5/7/10
