[Cite as Lister v. Ohio Dept. of Transp., Dist. 12, 2010-Ohio-4786.]

                                        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




JAMES S. LISTER

         Plaintiff

         v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

         Defendant

         Case No. 2010-01573-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



         {¶ 1} Plaintiff, James S. Lister, filed this action against defendant, Department
of Transportation (ODOT), contending that his 2005 Mazda was damaged as a
proximate cause of negligence on the part of ODOT personnel in maintaining hazardous
roadway conditions on Interstate 271 North in Lake County. Plaintiff described the
particular damage incident noting that: “[d]eep potholes in the I-271 north Expressway
just west of the I-90 East Merge caused damage to all 4 rims bending the aluminum
alloy rims (on the 2005 Mazda).” Plaintiff advised that all four rims on the vehicle “took
impacts (from) multiple potholes on I-271 from Eddy Road overpass to the I-90 merge.”
Plaintiff recalled that the described damage incident occurred on January 18, 2010 at
approximately 5:25 p.m. Plaintiff filed this complaint seeking to recover damages in the
amount of $1,164.41, the cost of replacement parts and related repair expenses he
incurred as a result of the January 18, 2010 damage event. Plaintiff also requested an
undetermined damage amount for mileage to have his car repaired. The $25.00 filing
fee was paid and plaintiff requested reimbursement of that cost along with his damage
claim.
       {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of any roadway defects on Interstate 271 prior to
plaintiff’s January 18, 2010 incident.     Defendant related that ODOT’s “investigation
indicates that the location of Plaintiff Lister’s incident would be at approximately county
milepost 1.75 (state milepost 40.22) in Lake County.” Defendant denied receiving any
prior calls or complaints about a pothole or potholes in the vicinity of that location
despite the fact that “[t]his section of roadway has an average daily traffic count” of over
90,000 vehicles. Defendant asserted that plaintiff did not offer any evidence to establish
the length of time any potholes existed in the vicinity of milepost 40.22 on Interstate 271
prior to 5:25 p.m. on January 18, 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 “Lake 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 18, 2010. The claim file is devoid of any
inspection record. Defendant argued that plaintiff has failed to offer any evidence to
prove his property damage was attributable to any conduct on the part of ODOT
personnel. Defendant asserted that “I-271 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 three (3)
pothole patching operations were conducted in the general vicinity and the last repair
was on December 17, 2009.” Earlier patching operations were performed on July 15,
2009 and December 15, 2009.          The submitted “Maintenance History” reflects that
ODOT personnel conducted two maintenance operations on the particular section of
Interstate 271 during January 2010 and that activity involved sign maintenance on
January 14, 2010 and pothole patching (mileposts 40.20 to 39.50) on that same date.
Defendant noted, “that if ODOT personnel had detected any defects they would have
been promptly scheduled for repair.”
       {¶ 4} Plaintiff filed a response arguing that defendant’s submitted complaint log
(covering the dates July 1, 2009 to January 18, 2010) “is inaccurate and misleading”
due to the fact that his two phone calls made to ODOT on January 19, 2010 and
January 20, 2010 are not listed on a log with an end date of January 18, 2010. Plaintiff
advised that the potholes his vehicle struck on Interstate 271 were “filled and patched”
on either the night of January 18, 2010 or the morning of January 19, 2010. Defendant
did not submit any record reflecting pothole patching was performed on either January
18, 2010 or the morning of January 19, 2010.          Plaintiff essentially contended that
defendant deliberately withheld complaint and repair evidence when filing an
investigation report.
       {¶ 5} Plaintiff revised the approximate time his car struck the potholes on
Interstate 271 to 4:50 p.m. on January 18, 2010. Plaintiff submitted photographs (taken
March 23, 2010) depicting the repaired potholes on Interstate 271. Plaintiff reported
that he spoke to an ODOT employee on January 20, 2010 and was informed the
damage-causing potholes on Interstate 271 had already been patched. Plaintiff stated,
“I find it difficult to believe ODOT had no prior complaints (of potholes on Interstate 271)
and wonder how they patched these areas with no prior knowledge of existing disrepair
of a major travelled expressway.” Plaintiff further stated that, “I don’t see any reason to
believe the potholes were just filled in without complaints being received.” Plaintiff did
not submit any evidence to indicate the length of time the roadway defects that
damaged his car existed prior to 4:50 p.m. on January 18, 2010.
       {¶ 6} For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his 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.
       {¶ 7} 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.
       {¶ 8} 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 defendant had actual notice of the potholes
on Interstate 271 prior to the night of January 18, 2010.
       {¶ 9} 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.
       {¶ 10} 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 defects are 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, 31 Ohio Misc. 2d 1, 31
OBR 64, 507 N.E. 2d 1179.         “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 ODOT
had constructive notice of the potholes.
       {¶ 11} 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 potholes.
       {¶ 12} 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 his 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




JAMES S. LISTER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

      Defendant
         Case No. 2010-01573-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 defendant. Court costs are assessed against plaintiff.



                                                  ________________________________
                                                  MILES C. DURFEY
                                                  Clerk

Entry cc:

James S. Lister                                   Jolene M. Molitoris, Director
2216 Walnut Boulevard                             Department of Transportation
Ashtabula, Ohio 44004                             1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
5/20
Filed 6/4/10
Sent to S.C. reporter 10/1/10
