[Cite as Spencer v. Dept. of Transp., Dist. 6, 2010-Ohio-5830.]

                                        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




VALERIE SPENCER

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION, DIST. 6

        Defendant
        Case No. 2010-02511-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Valerie Spencer, filed this action against defendant, Department
of Transportation, (ODOT), contending her 2000 Dodge Avenger was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
roadway condition on Interstate 70 West in Franklin County. Plaintiff described the
particular damage incident noting she entered “the freeway at Hamilton Rd. going 70
west it’s (approximately) 6 pm on Tuesday January 12th traffic was pretty heavy, I am in
the passing lane when I hit a huge pothole before the Miller/Kelton exit.”                       Plaintiff
pointed out she sustained wheel and tire damage to her vehicle as a result of striking
the pothole. Plaintiff filed this complaint requested damage recovery in the amount of
$619.99, the total cost of replacement parts and related repair expense incurred as a
result of the January 12, 2010 incident. 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 January 12, 2010 described occurrence.                Defendant located the particular
Case No. 2006-03532-AD                      -2-                MEMORANDUM DECISION



pothole “at approximately milepost 16.17 on I-70 in Franklin County.”               Defendant
explained that ODOT records show no reports of a pothole at the location indicated
were recorded prior to plaintiff’s damage event. Defendant related that ODOT received
four complaints of potholes on Interstate 70 on January 12, 2010, “but not in the same
location as plaintiff’s incident.”
       {¶ 3} Defendant argued plaintiff did not provide any evidence to establish the
length of time the particular pothole was present on the roadway prior to January 12,
2010. Defendant suggested that “it is more likely than not the pothole existed in that
location for only a relatively short amount of time before plaintiff’s incident.”
       {¶ 4} Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Franklin 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 in the vicinity of plaintiff’s incident the last time that section of
roadway was inspected prior to January 12, 2010. Defendant asserted that “I-70 was in
good condition at the time and in the general vicinity of plaintiff’s incident.” Defendant
stated that, “[a] review of the six-month maintenance history (record submitted) for the
area in question reveals that no (0) pothole patching operations were conducted in the
same location as plaintiff’s incident.” Defendant noted, “that if ODOT personnel had
detected any defects they would have been promptly scheduled for repair.”
       {¶ 5} For plaintiff to prevail on a claim of negligence, she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her injuries.           Armstrong v. Best Buy
Case No. 2006-03532-AD                    -3-              MEMORANDUM DECISION




Case No. 2006-03532-AD                    -3-              MEMORANDUM DECISION



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.
       {¶ 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 Interstate 70 prior to the night of January 12, 2010.
       {¶ 7} Therefore, to find liability, plaintiff must prove that ODOT had constructive
Case No. 2006-03532-AD                   -4-               MEMORANDUM DECISION



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.” Danko v. Ohio Dept. of Transp.
(Feb. 4, 1993), Franklin App. 92AP-1183. No evidence has shown that 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. 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 plaintiff may have suffered from the
Case No. 2006-03532-AD                       -5-             MEMORANDUM DECISION




Case No. 2006-03532-AD                       -5-             MEMORANDUM DECISION



pothole
       {¶ 10} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained a known hazardous roadway condition. Plaintiff failed
to prove her property damage was connected to any conduct under the control of
defendant, or that defendant was negligently 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




VALERIE SPENCER
Case No. 2006-03532-AD                   -6-                MEMORANDUM DECISION



      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION, DIST. 6

      Defendant

Case No. 2010-02511-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:

Valerie Spencer                                 Jolene M. Molitoris, Director
3393 Stephen Drive S.                           Department of Transportation
Columbus, Ohio 43204                            1980 West Broad Street
                                                Columbus, Ohio 43223
Case No. 2006-03532-AD           -7-   MEMORANDUM DECISION




Case No. 2006-03532-AD           -7-   MEMORANDUM DECISION



RDK/laa
6/22
Filed 8/3/10
Sent to S.C. reporter 11/23/10
