[Cite as Arend v. Ohio Dept. of Transp., 2011-Ohio-6908.]

                                      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
THOMAS WEIR AREND

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant


Case No. 2011-05980-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, Thomas Arend, filed this action against defendant, Department of
Transportation (ODOT), contending his 2005 Chrysler PT Cruiser was damaged as a
proximate result of negligence on the part of ODOT personnel in maintaining a
hazardous condition on I-670 in Franklin County.            Plaintiff recalled the particular
damage incident occurred on March 18, 2011, at approximately 11:30 a.m. Plaintiff
requested damages in the amount of $373.57, the total cost of replacement parts and
related repair expenses. 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 March 18, 2011 described occurrence. Defendant located the pothole “at
milepost 3.14 on I-670 in Franklin County.” Defendant explained ODOT records show
eleven complaints were taken in March 2011 for potholes on I-670, “but none of them
were in the same location as plaintiff’s incident.” Defendant argued plaintiff did not
provide any evidence to establish the length of time the particular pothole was present
on the roadway prior to March 18, 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 “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 on I-670 the last time that section of
roadway was inspected prior to March 18, 2011. Defendant’s maintenance records
show potholes were patched in the vicinity of plaintiff’s incident on January 31, 2011.
      {¶4}    Plaintiff did not file a response.
      {¶5}    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.
      {¶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-670 prior to the morning of March 18, 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. 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 his 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
THOMAS WEIR AREND

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant


Case No. 2011-05980-AD

Acting 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
                                                  Acting Clerk

Entry cc:

Thomas Weir Arend                                 Jerry Wray, Director
5737 Michaela Court                               Department of Transportation
Columbus, Ohio 43235                              1980 West Broad Street
                                                  Columbus, Ohio 43223



8/3
Filed 8/10/11
Sent to S.C. reporter 1/3/12
