[Cite as McCoy v. Ohio Dept. of Transp., Dist. 8, 2011-Ohio-2496.]

                                       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




SHANNON V. MCCOY

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

       Defendant

Case No. 2010-11668-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Shannon V. McCoy, filed this action against defendant,
Department of Transportation (ODOT), contending that the tire and rim on her 2009
Volkswagen Jetta were damaged as a proximate cause of negligence on the part of
ODOT in maintaining a hazardous condition on Interstate 75 North in Hamilton County.
Specifically, plaintiff related that her car was damaged when the vehicle struck “a big
patch of potholes” on the roadway “right under the bridge in front of the GE Plant.”
Plaintiff submitted photographs depicting the damage-causing potholes on Interstate 75
North. The potholes shown are numerous, substantial in size, and cover the whole area
under the bridge shown spanning Interstate 75. Many of the depicted defects display
patching material deterioration from previous repair attempts. Plaintiff recalled that her
damage incident occurred on October 28, 2010 at approximately 7:00 a.m.                       In her
complaint, plaintiff requested damages in the amount of $383.40, the total cost of
replacement parts. The filing fee was paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the particular damage-causing potholes prior to
plaintiff’s October 28, 2010 described occurrence.        Defendant located the particular
potholes at milepost 13.90 on I-75 in Hamilton County and advised that “ODOT did not
receive any reports of the pothole or have knowledge of the pothole prior to the
(October 28, 2010) incident.” Defendant submitted a copy of “Maintenance Records”
recording ODOT maintenance activity on Interstate 75 from April 28, 2010 to October
28, 2010.    The submitted documents show ODOT personnel did not perform any
pothole patching operations in the vicinity of milepost 13.90 on Interstate 75 North
during the six-month period preceding October 28, 2010.
       {¶ 3} Defendant denied that ODOT negligently maintained Interstate 75 in
Hamilton County. Defendant noted that the ODOT “Hamilton County Manager inspects
all state roadways within the county at least two times a month.”             Apparently, no
potholes were discovered at milepost 13.90 on Interstate 75 North the last time that
section of roadway was inspected prior to October 28, 2010. The claim file is devoid of
any copy of ODOT Hamilton County inspection records. Defendant asserted that the
particular location of Interstate 75 is a well patrolled location and suggested that the
pothole that plaintiff’s vehicle struck “existed for only a short time before the incident.”
       {¶ 4} Plaintiff filed a response stating that “[i]t is hard to believe that the DOT
had no idea of the deep and dangerous potholes that have existed for many months.”
Plaintiff submitted signed statements from Terry D. Sielken and Jamie Perdue, who
both frequently travel Interstate 75 North in the vicinity of milepost 13.90. Sielken noted,
“[t]he road (Interstate 75 North) has went from bad to worse condition over the last
year.” Perdue recalled, “[a]pproximately one week before that (plaintiff’s October 28,
2010 incident) I hit the same pothole.” Furthermore, Perdue observed, “I know this area
of road is in bad shape, it has been that way for several months before I ran over it.”
Plaintiff submitted additional photographs (taken on or about February 4, 2011)
depicting roadway defects on Interstate 75 North in the vicinity of milepost 13.90. The
photographs show a large portion of roadway in disrepair with multiple potholes.
       {¶ 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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that she 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.
      {¶ 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 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
potholes.   Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the pothole must be presented.
      {¶ 8} “[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.
      {¶ 9} Generally, 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. To find constructive notice of a defect, evidence must
establish 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.         Ordinarily size of a 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. “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.
Plaintiff submitted statements from fellow motorists who noted that the roadway at
milepost 13.90 was in a deteriorated state at least one week prior to the incident forming
the basis of the instant claim. The individuals offering statements suggest that the
roadway was in a deteriorated state for a much longer period than one week prior to
October 28, 2010. Evidence establishes that sufficient time elapsed from when the
damage-causing roadway defects first appeared at milepost 13.90 on Interstate 75
North to invoke liability on a constructive notice rationale. See Fite v. Dept. of Transp.,
Ct. of Cl. No. 2009-05757-AD, jud. aff. (12-18-09), 2009-Ohio-7124; also Stoller v. Ohio
Dept. of Transp., Ct. of Cl. No. 2010-03177-AD, 2010-Ohio-4960. Plaintiff has suffered
damages in the amount of $383.40.         The $25.00 filing fee may be reimbursed as
compensable costs pursuant to R.C. 2335.19.          See Bailey v. Ohio Department of
Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.




                               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




SHANNON V. MCCOY
        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

        Defendant

         Case No. 2010-11668-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 plaintiff in the amount of $408.40, which includes the filing fee. Court costs are
assessed against defendant.




                                           MILES C. DURFEY
                                           Clerk

Entry cc:

Shannon V. McCoy                           Jerry Wray, Director
17 Daisy Lane                              Department of Transportation
Ft. Thomas, Kentucky 41075                 1980 West Broad Street
                                           Columbus, Ohio 43223
RDK/laa
2/10
Filed 3/4/11
Sent to S.C. reporter 5/16/11
