[Cite as Hardesty v. Ohio Dept. of Transp., 2011-Ohio-2894.]

                                      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




GINGER HARDESTY

       Plaintiff

       v.

OHIO DEPT. OF TRANS.

       Defendant

Case No. 2010-10921-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Ginger Hardesty, filed this action against defendant, Department
of Transportation (ODOT), contending the tire on her 2008 Kia Rondo was damaged as
a proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 670 in Franklin County. Specifically, plaintiff pointed out the tire
on her van was damaged when the vehicle struck a pothole near the Gahanna exit on
Interstate 670. Plaintiff recalled her damage incident occurred on August 8, 2010 at
approximately 7:20 p.m. In her complaint, plaintiff requested damage recovery in the
amount of $371.20, the total cost of a replacement tire and related repair expenses.
The $25.00 filing fee was paid and plaintiff seeks recovery of that cost along with her
damage claim.
        {¶ 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 that the pothole plaintiff’s vehicle
struck was located “between mileposts 9.69 and 8.76 on I-670 in Franklin County.”
Defendant denied receiving any calls or complaints regarding a pothole at that location
on Interstate 670 prior to August 8, 2010. Defendant explained that ODOT records
show no reports of a pothole at the location recorded prior to plaintiff’s damage event.
Defendant related that ODOT received seven complaints of potholes on Interstate 670
in June and July 2010, “but none of them are in the same location as plaintiff’s.”
Defendant advised that no prior reports of a pothole between mileposts 9.69 and 8.76
were received despite the fact that this section of roadway “has an average daily traffic
count between 17,490 and 106,620 vehicles.”
       {¶ 3} Defendant argued that plaintiff did not provide any evidence to establish
the length of time the particular pothole between mileposts 9.69 and 8.76 was present
on the roadway prior to August 8, 2010. Defendant suggested that, “it is more likely
than not the pothole existed in that location for only a relatively short amount of time
before plaintiff’s incident.”
       {¶ 4} Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Franklin 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 August 8, 2010. Defendant asserted that plaintiff did
not prove her property damage was attributable to any conduct on the part of ODOT
personnel.    Defendant stated that, “[a] review of the six-month maintenance history
(record submitted) for the area in question reveals that one (1) pothole patching
operation was conducted in the general vicinity of plaintiff’s incident.” This pothole was
repaired on March 10, 2010. Defendant related, “if ODOT personnel had detected any
defects they would have promptly been scheduled for repair.”
       {¶ 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. 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 on Interstate 670 prior to the night of August 8, 2010.
       {¶ 8} 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 that
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, 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, 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. No evidence has shown that ODOT had constructive notice of the pothole.
       {¶ 10} 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 one
pothole repair was made in the vicinity of plaintiff’s incident in March 2010 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 condition. Herlihy v.
Ohio Department of Transportation (1999), 99-07011-AD. Therefore, defendant is not
liable for any damage plaintiff may have suffered from the pothole.
       {¶ 11} 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 her 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




GINGER HARDESTY

      Plaintiff

      v.
OHIO DEPT. OF TRANS.

        Defendant

         Case No. 2010-10921-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:

Ginger Hardesty                                   Jerry Wray, Director
308 Marjoram Drive                                Department of Transportation
Gahanna, Ohio 43230                               1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
3/7
Filed 3/17/11
Sent to S.C. reporter 6/9/11
