[Cite as Gray v. Ohio Dept. of Transp., 2011-Ohio-4799.]



                                      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




ELIZABETH GRAY

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-03308-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Elizabeth Gray, filed this action against defendant, Department of
Transportation (ODOT), contending that her vehicle was damaged on February 22,
2011, at approximately 9:05 a.m. as a proximate result of negligence on the part of
ODOT in maintaining a hazardous condition on Interstate 71 South in Franklin County.
Specifically, plaintiff asserted that her right front wheel was damaged as a result of
striking a pothole which she stated was “located in the middle of the I-71 southbound
roadway around the 106 milepost before the I-70 westbound split.” In her complaint,
plaintiff requested damage recovery of $204.33, the stated cost for automotive repairs.
The $25.00 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 incident. Defendant advised that no complaints of a pothole were received at
the location on Interstate 71 described by plaintiff which “is near county milepost 15.26
or state milepost 106.33 on I-71 in Franklin County.” Defendant contended that plaintiff
did not produce any evidence to establish the length of time the pothole at milepost
106.33 on Interstate 71 existed prior to her February 22, 2011 damage occurrence.
        {¶3}   Furthermore, defendant contended that plaintiff failed to offer evidence to
prove that ODOT negligently maintained the roadway. Defendant asserted that plaintiff
has not shown her property damage was attributable to conduct on the part of ODOT
personnel. Defendant explained that the ODOT “Franklin County Manager inspects all
state roadways within the county at least two times a month.” Apparently, no potholes
were discovered at milepost 106.33 on Interstate 71 the last time that particular section
of roadway was inspected prior to February 22, 2011. The claim file is devoid of any
inspection record.    Defendant did submit a copy of the “Maintenance History” for
Interstate 71 in Franklin County covering the dates from September 27, 2010 to
February 22, 2011. This record shows that ODOT crews patched potholes in the area
including milepost 106.33 on November 30, 2010, January 26, 2011, and January 31,
2011.
        {¶4}   On May 16, 2011, plaintiff filed a response arguing that defendant should
bear liability for the damage to her car.
        {¶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
pothole.    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, 47 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, at 4.      “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. No. 92AP-1183. In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, 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; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
      {¶9}    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 pothole
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458. No evidence was presented to establish the time that the
particular pothole was present. Size of the 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. Plaintiff has failed to prove that defendant had constructive
notice of the pothole. 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 that plaintiff may have suffered from
the roadway defect.
                                 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




ELIZABETH GRAY

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-03308-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:

Elizabeth Gray                                    Jerry Wray, Director
2833 Indianola Avenue                             Department of Transportation
Columbus, Ohio 43202                              1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
5/17
Filed 6/15/11
Sent to S.C. reporter 9/21/11
