[Cite as Nichols v. Ohio Dept. of Transp., Dist. 6, 2010-Ohio-6557.]

                                        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




DARRELL L. NICHOLS, JR.

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 6

        Defendant

        Case No. 2010-05641-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Darrell L. Nichols, Jr., filed this action against defendant,
Department of Transportation (ODOT), contending that his 1995 Honda Civic was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on US Route 33 in Union County. Plaintiff recalled that he was
driving west on US Route 33 on February 21, 2010 at approximately 6:30 p.m. when his
vehicle struck “a pothole near the centerline in the right hand lane” causing tire and rim
damage to the car. Plaintiff requested damage recovery in the amount of $548.42, the
total cost of replacement parts.               The 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 the particular damage-causing pothole prior to
plaintiff’s February 21, 2010 described occurrence. Defendant located the pothole “at
approximately milepost 20.37 on US 33 in Union County.” Defendant explained that
ODOT records show no prior reports of a pothole at the location despite the fact that the
particular section of roadway on US 33 “has an average daily traffic count between
35,020 and 40,760 vehicles.”     Defendant argued that plaintiff did not provide any
evidence to establish the length of time that the particular pothole at milemarker 20.37
was present on the roadway prior to 6:30 p.m. on February 21, 2010.
      {¶ 3} Additionally, defendant contended that plaintiff did not offer evidence to
prove that the roadway was negligently maintained. Defendant stated that, “[a] review
of the six-month maintenance history (record submitted) for the area in question reveals
that no (0) pothole patching operations were conducted in the general vicinity of
plaintiff’s incident. Defendant noted, “that if ODOT personnel had detected any defects
they would have been promptly scheduled for repair.”
      {¶ 4} 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.
      {¶ 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 on US Route 33 prior to the evening of February 21, 2010.
      {¶ 7} Therefore, to find liability plaintiff must prove that 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.
      {¶ 8} 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 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, 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 that
ODOT had constructive notice of the pothole.
      {¶ 9} 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 pothole 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 no
pothole repairs were made in the vicinity of plaintiff’s incident in the six-month period
preceding February 21, 2010 does not prove negligent maintenance of the roadway on
the part of ODOT.
      {¶ 10} 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. Plaintiff
has failed to introduce sufficient evidence to prove that defendant maintained a known
hazardous roadway condition. Plaintiff has failed to prove that his property damage was
connected to any conduct under the control of defendant, that defendant was negligent
in maintaining the roadway area, or that there was any actionable negligent conduct on
the part of defendant in regard to pothole repair. 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




DARRELL L. NICHOLS, JR.

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 6

      Defendant

Case No. 2010-05641-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:

Darrell L. Nichols, Jr.          Jolene M. Molitoris, Director
758 Carrs Run Road               Department of Transportation
Waverly, Ohio 45690              1980 West Broad Street
                                 Columbus, Ohio 43223
RDK/laa
8/20
Filed 9/20/10
Sent to S.C. reporter 12/29/10
