[Cite as Young v. Ohio Dept. of Transp., 2010-Ohio-6688.]

                                      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




MARY LOU YOUNG

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-07997-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Mary Lou Young, filed this action against defendant, Department
of Transportation (ODOT), contending that the springs on her Saturn LW200 were
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on Interstate 675 in Greene County. In her complaint, plaintiff
described her damage incident noting that, “[o]n May 25, 2010 at around 9:30 a.m. I
took the exit from North Highway #675 to the Fairfield Rd.” and while traveling on the
exit ramp the vehicle struck a pothole causing the damage claimed. Plaintiff seeks
damage recovery in the amount of $494.34, the cost of replacement parts and repair
expenses she incurred resulting from the May 25, 2010 incident. 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 that the pothole plaintiff’s vehicle
struck was located “at county milepost 10.35 or state milepost 17.79 on I-675 in Greene
County.” Defendant denied receiving any calls or complaints regarding a pothole at that
location on Interstate 675 prior to plaintiff’s May 25, 2010 property damage event.
Defendant suggested that, “it is likely the pothole existed for only a short time before the
incident.” Furthermore, defendant asserted that plaintiff did not produce any evidence
to prove her property damage was caused by negligent maintenance.                Defendant
explained that the ODOT “Greene County Manager inspects all state roadways within
the county at least two times a month.” Apparently, no potholes were discovered at
milepost 17.79 on Interstate 675 the last time that section of roadway was inspected
prior to May 25, 2010. The claim file is devoid of any inspection record. Defendant
submitted “Maintenance Records” show ODOT crews patched potholes in the vicinity of
plaintiff’s incident on December 4, 2009, December 17, 2009, February 1, 2010,
February 22, 2010, March 4, 2010, and May 13, 2010.
       {¶ 3} 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.
       {¶ 4} 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.
       {¶ 5} 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 presented.
       {¶ 6} “[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; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
       {¶ 7} 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 length of 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.
       {¶ 8} 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 that defendant’s “Maintenance History” reflects that
pothole repairs were made in the vicinity of plaintiff’s incident on various occasions 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 conditions. 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.




                               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




MARY LOU YOUNG

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

       Case No. 2010-07997-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:

Mary Lou Young                  Jolene M. Molitoris, Director
6733 Willow Creek Drive         Department of Transportation
Huber Heights, Ohio 45424       1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
11/1
Filed 12/29/10
Sent to S.C. reporter 2/25/11
