[Cite as Erxleben v. Ohio Dept. of Transp., 2011-Ohio-4790.]



                                      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




RENEE ERXLEBEN

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2011-02417-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Renee Erxleben, filed this action against defendant, Department
of Transportation (ODOT), contending her 2001 Toyota Camry was damaged as a
proximate result of negligence on the part of ODOT personnel in maintaining a
hazardous condition on I-271 in Cuyahoga County. In her complaint, plaintiff provided a
narrative description of her damage event recording she was traveling north on I-271
“and shortly after passing Wilson Mills exit I hit a pothole, damaging my rim and giving
me a flat tire.” Plaintiff recalled the particular damage incident occurred on February 4,
2011, at approximately 5:15 p.m.                Plaintiff requested damages in the amount of
$182.23, the total cost of a replacement tire and wheel. 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
plaintiff’s February 4, 2011 described occurrence. Defendant located the pothole “after
county milepost 14.50 or state milepost 36.30 in Cuyahoga County.”                      Defendant
explained ODOT records show two reports of a pothole on I-271 in the vicinity of
plaintiff’s incident; however “these incidents happened in September 2010.” Defendant
argued plaintiff did not provide any evidence to establish the length of time the particular
pothole was present on the roadway prior to February 4, 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 plaintiff’s incident.”
       {¶3}   Furthermore, defendant contended plaintiff did not offer any evidence to
prove the roadway was negligently maintained.             Defendant related the ODOT
“Cuyahoga 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 on I-271 the last time that
section of roadway was inspected prior to February 4, 2011. Defendant’s maintenance
records show potholes were patched in the vicinity of plaintiff’s incident on January 6,
2011, and January 10, 2011.
       {¶4}   Plaintiff did not file a response.
       {¶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 defendant had actual notice of the pothole
on I-271 prior to the evening of February 4, 2011.
      {¶8}    Therefore, to find liability plaintiff 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, plaintiff 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, 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 defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident twice in the month preceding
February 4, 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} Plaintiff has 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.
Plaintiff has failed to introduce sufficient evidence to prove defendant maintained a
known hazardous roadway condition.      Plaintiff has failed to prove that her 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




RENEE ERXLEBEN

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

         Case No. 2011-02417-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:

Renee Erxleben                                    Jerry Wray, Director
417 Banks Landing                                 Department of Transportation
Painesville, Ohio 44077                           1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
6/3
Filed 6/15/11
Sent to S.C. reporter 9/21/11
