[Cite as Bess v. Ohio Dept. of Transp., 2010-Ohio-6559.]

                                       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




GINEL BESS

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-07181-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Ginel Bess, filed this action against defendant, Department of
Transportation (ODOT), contending the tire and rim on her 2009 Mitsubishi Lancer GTS
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. Plaintiff related she
“[e]ntered I-71 South from Ridge Road in Cincinnati, Ohio” when her vehicle struck a
“huge pot hole” as she was “[c]rossing lanes to exit off on Smith Edwards Road in
Norwood.” According to information supplied by defendant, the section of Interstate 71
from Ridge Avenue to the Smith Edmondson Road exit covers from milepost 8.51 to
6.75. Plaintiff recalled her damage incident occurred on April 10, 2010 at approximately
10:30 p.m. In her complaint, plaintiff requested damages in the amount of $699.61, the
total stated cost of replacement parts. The filing fee was paid.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of any roadway defects on Interstate 71 at the location
supplied by plaintiff prior to April 10, 2010. Defendant provided a copy of a complaint
about potholes at the “[e]ntrance ramp to I-71 South from Smith Edwards Rds. on-ramp”
dated January 30, 2010. According to defendant, these reported roadway defects on
Interstate 71 South in Hamilton County were “repaired the next day on February 1,
2010.” Defendant denied receiving any other complaints regarding roadway defects at
the particular location despite the fact the particular section of Interstate 71 has an
average daily traffic count of over 150,000 vehicles.           Defendant related ODOT’s
“investigation indicates that the location of Plaintiff Bess’ incident would be at
approximately milepost 7.50 on I-75 in Hamilton County.” Defendant asserted plaintiff
did not offer any evidence to establish the length of time the pothole in question existed
on the roadway at the location described prior to 10:30 p.m. on April 10, 2010.
Defendant suggested that “it is more likely than not that the pothole existed in that
location for only a relatively short amount of time before plaintiff’s incident.”
       {¶ 3} Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised 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 in the vicinity of plaintiff’s incident the last time that section of
roadway was inspected prior to April 10, 2010. The claim file is devoid of any inspection
record. Defendant argued that plaintiff has failed to offer any evidence to prove her
property damage was attributable to any conduct on the part of ODOT personnel.
Defendant stated that, “[a] review of the six-month maintenance history (record
submitted) for the area in question reveals that three (3) pothole patching operations
were conducted in the general vicinity of the plaintiff’s incident with the last repair being
on March 31, 2010.” Earlier patching operations were performed on Interstate 71 in
Hamilton County in the general vicinity of plaintiff’s incident on February 4, 2010 and
March 4, 2010. Defendant noted, “that if ODOT personnel had detected any defects
they would have been promptly scheduled for repair.”
       {¶ 4} Plaintiff filed a response again relating that the pothole her vehicle struck
“was located between Ridge Road entrance to I-71 south and Smith Edwards exit in
Norwood.” Plaintiff pointed out defendant referenced the particular damage-causing
pothole being located on Interstate 75 in Hamilton County. Plaintiff contended ODOT
was aware of the pothole her car struck “and had scheduled to fix them April 11, 2010
one day after my accident.” Plaintiff recalled she reported her April 10, 2010 damage
incident on April 12, 2010 and spoke with an ODOT employee identified as John.
Plaintiff noted that when she called and reported the location of the damage-causing
pothole she was informed by ODOT employee John that potholes on Interstate 71 south
between Ridge Road and Smith Edwards Road were repaired the previous night, April
11, 2010, a Sunday.      Plaintiff disputed the pothole complaint records submitted by
defendant “is not a true accurate account indicative of all repairs of I-71 south.” Plaintiff
contended that if the submitted “Maintenance History” for Interstate 71 would reflect
pothole repairs made on April 11, 2010 then that record would establish ODOT had
notice of potholes on Interstate 71 prior to April 10, 2010. Plaintiff stated “[s]ince my
accident (on April 10, 2010) was not reported till the day after repair (April 11, 2010), per
John, an employee of the defendant, then this proves that defendant was aware of the
potholes and had scheduled the repairs needed prior to my accident on April 10, 2010.”
       {¶ 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
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} 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.
       {¶ 7} 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 conditions or defects 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
potholes on Interstate 71 prior to the night of April 10, 2010 despite plaintiff’s assertions
to the contrary. The assertion defendant repaired the pothole on April 11, 2010 does
not constitute evidence of either actual or constructive notice of the pothole on April 10,
2010.
        {¶ 8} Therefore, to find liability, plaintiff must prove that ODOT had constructive
notice of the defects.    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.
        {¶ 9} 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.” Bussard. “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 that ODOT had constructive notice of the pothole.
        {¶ 10} 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 “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident on various occasions does not
prove negligent maintenance of the roadway on the part of ODOT. 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 conditions. Herlihy
v. Ohio Department of Transportation (1999), 99-07011-AD. Therefore, defendant is
not liable for any damage plaintiff may have suffered from the pothole.
       {¶ 11} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained known hazardous roadway conditions. Plaintiff failed
to prove that her property damage was connected to any conduct under the control of
defendant, or that defendant was negligent 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




GINEL BESS

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

       Case No. 2010-07181-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:

Ginel Bess                                       Jolene M. Molitoris, Director
2816 Flagstone Drive                             Department of Transportation
West Harrison, Indiana 47060                     1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
8/12
Filed 9/15/10
Sent to S.C. reporter 12/29/10
