[Cite as Repa v. Ohio Dept. of Transp., 2011-Ohio-5315.]



                                      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




M. A. REPA, et al.

       Plaintiffs

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2011-03804-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiffs, M. A. Repa and J. Wroniak, filed this action against defendant,
Department of Transportation (ODOT), contending their 2005 Mazda 3 was damaged
as a proximate result of negligence on the part of ODOT personnel in maintaining a
hazardous condition on I-271 in Summit County. In their complaint, plaintiffs provided a
narrative description of the damage event stating, “after entering I 271 N we hit a
pothole with the driver’s side front tire while driving in the right hand lane of the
interstate.”    Plaintiffs recalled the particular damage incident occurred on March 5,
2011, at approximately 12:10 p.m.               Plaintiffs requested damages in the amount of
$697.09, the total cost of a replacement tire and wheel along with reimbursement of the
filing fee. 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
plaintiffs’ March 5, 2011 described occurrence. Defendant located the pothole “near
county milepost 6.18 or state milepost 12.77 in Summit County.” Defendant argued
plaintiffs did not provide any evidence to establish the length of time the particular
pothole was present on the roadway prior to March 5, 2011. Defendant suggested, “it is
more likely than not that the pothole existed in that location for only a relatively short
amount of time before plaintiffs‘ incident.”
       {¶3}   Furthermore, defendant contended plaintiffs did not offer any evidence to
prove the roadway was negligently maintained. Defendant related the ODOT “Summit
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 plaintiffs’ incident on I-271 the last time that section of
roadway was inspected prior to March 5, 2011. Defendant’s maintenance records show
potholes were patched in the vicinity of plaintiff’s incident on January 4, 5, 10, and
February 10, 2011.
       {¶4}   Plaintiffs filed a response contending that defendant’s inspections are not
adequate and asserting that several other vehicles struck the same pothole at or near
the time of plaintiffs’ incident. Nonetheless, plaintiffs failed to provide sufficient evidence
to show defendant had notice of the pothole prior to their damage event.
       {¶5}   For plaintiffs to prevail on a claim of negligence, they must prove, by a
preponderance of the evidence, that defendant owed them a duty, that it breached that
duty, and that the breach proximately caused their 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, plaintiffs
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 I-271 prior to the afternoon of March 5, 2011.
      {¶8}    Therefore, to find liability plaintiffs 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.
      {¶9}    In order for there to be constructive notice, plaintiffs 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, 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. 92AP-
1183. There is insufficient evidence to show defendant had constructive notice of the
pothole.
      {¶10} Generally, in order to recover in a suit involving damage proximately
caused by roadway conditions including potholes, plaintiffs 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 pothole
repairs were made in the vicinity of plaintiffs’ incident four times in the two months
preceding March 5, 2011, does not prove negligent maintenance of the roadway on the
part of ODOT.      See Maynard v. Ohio Dept. of Transp., Dist. 10, Ct. of Cl. No. 2004-
03730-AD, 2004-Ohio-3284; Marcis v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-05830-
AD, 2004-Ohio-4830.
      {¶11} Plaintiffs have 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.
Plaintiffs have failed to introduce sufficient evidence to prove defendant maintained a
known hazardous roadway condition. Plaintiffs have failed to prove that their 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




M. A. REPA, et al.

      Plaintiffs

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

      Case No. 2011-03804-AD

Acting 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 plaintiffs.



                                                 ________________________________
                                                 DANIEL R. BORCHERT
                                                 Acting Clerk

Entry cc:

M. A. Repa                                       Jerry Wray, Director
J. Wroniak                                       Department of Transportation
69 Pine Street                                   1980 West Broad Street
Thorold Ont. L2V 2P3                             Columbus, Ohio 43223

SJM/laa
6/8
Filed 7/13/11
Sent to S.C. reporter 10/13/11
