[Cite as Acker v. Ohio Dept. of Transp., 2009-Ohio-7171.]

                                      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




KAREN ACKER

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2009-06800-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} Plaintiff, Karen Acker, related she was traveling south on Interstate 77
“before 271 exit” through a construction zone when the tire and rim on her 2001 Volvo
C7T were damaged. Apparently plaintiff’s car was damaged as a result of striking a
roadway defect, presumedly a pothole. Plaintiff further related an employee of Great
Lakes Construction Company (Great Lakes), who was working in the area helped
change her tire after the damage incident.                  Plaintiff recalled her damage incident
occurred on July 15, 2009 at approximately 8:00 a.m. Plaintiff implied the damage to
her car was proximately caused by negligence on the part of defendant, Department of
Transportation (ODOT), in failing to maintain the roadway free of defective conditions.
Plaintiff filed this complaint seeking to recover damages in the amount of $461.63,
representing her stated cost of automotive repair.                 In her complaint plaintiff listed
witnesses to the July 15, 2009 property damage occurrence as 1) Mike Rericha, who
resides at the same address as plaintiff and 2) an unidentified male employee of Great
Lakes who helped her change her tire. The filing fee was paid.
      {¶ 2} Defendant explained the roadway area where plaintiff’s incident occurred
was near the construction project under the control of ODOT contractor, Great Lakes.
Defendant related the specific construction project dealt with “grading, draining, paving
with asphalt concrete on reinforced concrete base and by rehabilitating eight bridges
between SR 303 and SR 21 on I-77 in Summit County” between mileposts 144.50 to
145.84.     From plaintiff’s description defendant located plaintiff’s property damage
occurrence at milepost 143.70 on Interstate 77 in Summit County; outside the limits of
the construction project under Great Lakes control and within the maintenance
responsibility of ODOT.      Defendant denied liability in this matter based on the
contention that no ODOT personnel had any knowledge of any roadway defect, either a
pothole or debris, at milepost 143.70 prior to plaintiff’s damage event.       Defendant
denied receiving any prior complaints regarding potholes or debris at milepost 143.70
on Interstate 77 prior to plaintiff’s incident. Defendant argued plaintiff did not produce
any evidence to establish her property damage was attributable to any conduct on the
part of ODOT personnel.
                               CONCLUSIONS OF LAW
      {¶ 3} 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.
      {¶ 4} 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.
      {¶ 5} To prove a breach of duty by defendant to maintain the highways plaintiff
must establish, by a preponderance of the evidence, that ODOT 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. No evidence has shown that defendant had actual notice of the
damage-causing condition.
      {¶ 6} 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. There is no evidence of constructive notice of the
defect.
      {¶ 7} 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
defect.
      {¶ 8} Plaintiff has not shown, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to her, or that her injury was proximately
caused by defendant’s negligence. Plaintiff has failed to show that the damage-causing
condition was connected to any conduct under the control of defendant 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




KAREN ACKER
        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

         Case No. 2009-06800-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:

Karen Acker                                       Jolene M. Molitoris, Director
12150 Tinkers Creek                               Department of Transportation
Valley View, Ohio 44125                           1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
10/27
Filed 11/20/09
Sent to S.C. reporter 3/12/10
