[Cite as Wolf v. Dept. of Transp., 2010-Ohio-4793.]

                                       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




BILLIE K. WOLF

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-03266-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On February 14, 2010, at approximately 8:30 p.m., plaintiff, Billie K. Wolf,
was traveling west on State Route 125 within the Village of Amelia in Clermont County,
when her 2009 Ford Flex struck “a very large pothole” causing tire damages to the
vehicle. Plaintiff pointed out that after the damage incident she reported the pothole to
Village of Amelia employees who were supposedly aware of the defect due to prior
complaints. Plaintiff asserted the damage to her vehicle was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in failing to
maintain the roadway free of defects such as potholes. Plaintiff filed this complaint
seeking to recover $369.85, the total cost of a replacement tire. The filing fee was paid.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular pothole on the roadway prior to plaintiff’s
property damage occurrence. Defendant advised plaintiff was contacted to provide a
more specific location of the pothole on State Route 125 and from her description
ODOT located the defect at approximately milepost 6.77. Defendant denied receiving
any calls or complaints regarding a pothole at milepost 6.77 on State Route 125 prior to
plaintiff’s February 14, 2010 property damage event. Defendant suggested “it is likely
the pothole existed for only a short time before the incident.” Furthermore, defendant
asserted plaintiff did not produce any evidence to prove her property damage was
caused by negligent maintenance. Defendant explained the ODOT “Clermont County
Manager inspects all state roadways within the county at least two times a month.”
Apparently no potholes were discovered at milepost 6.77 on State Route 125 the last
time that section of roadway was inspected prior to February 14, 2010.
       {¶ 3} Plaintiff filed a response pointing out she contacted “Julie Wartman in the
Village of Amelia” regarding her property damage from the pothole on State Route 125.
Plaintiff noted she was told by Julie Wartman that the village had received several
phone complaints about potholes on State Route 125 prior to February 14, 2010.
Plaintiff further noted that Julie Wartman informed her that she notified ODOT “several
times regarding” potholes on State Route 125 within the Village of Amelia. Plaintiff did
not provide any statement from Julie Wartman in reference to the matter asserted in
connection with a prior report of the particular pothole at milepost 6.77.
       {¶ 4} 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. This court, as trier of
fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14
Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477.
       {¶ 5} 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.
      {¶ 6} 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 present.
      {¶ 7} “[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, 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.         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 .
      {¶ 8} 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.
       {¶ 9} Ordinarily in a claim involving roadway defects, plaintiff must prove either:
1) defendant had actual or constructive notice of the defective condition 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. 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




BILLIE K. WOLF

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant

       Case No. 2010-03266-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:

Billie K. Wolf                                  Jolene M. Molitoris, Director
1325 Statewood Court                            Department of Transportation
Amelia, Ohio 45102                              1980 West Broad Street
                                                Columbus, Ohio 43223
RDK/laa
5/20
Filed 6/8/10
Sent to S.C. reporter 10/1/10
