[Cite as Copeland v. Ohio Dept. of Transp., 2010-Ohio-6640.]

                                      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




MARK COPELAND

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-03631-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Mark Copeland, filed this action against defendant, Department of
Transportation (ODOT), contending that his automobile tire and rim were damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 70 West in Franklin County. In his complaint, plaintiff offered a
written description of his damage incident noting that, “I was driving west bound on
Interstate 70 in the far left lane and as I was changing lanes into the middle lane I hit a
large pothole in the middle lane about 3/4 of a mile from the Rome Hilliard Exit.”
Plaintiff recalled that the damage incident occurred on February 14, 2010 at
approximately 9:30 p.m. Plaintiff requested damage recovery in the amount of $322.39,
the total cost of replacement parts. The $25.00 filing fee was paid and plaintiff seeks
reimbursement of that cost along with his damage claim.
        {¶ 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 14, 2010 described occurrence. Defendant located the particular
pothole “at county milepost 5.27 or state milepost 91.30 in Franklin County.” Defendant
explained that ODOT records show no reports of a pothole at the location indicated
were recorded prior to plaintiff’s damage event. Defendant related that ODOT received
four complaints of potholes on Interstate 70 (on February 3, 2010, February 7, 2010,
February 10, 2010 and February 11, 2010) “but none of them were in the same location
as plaintiff’s.” Defendant noted that the particular section of roadway, “has an average
daily traffic count between 76,070 to 97,520 vehicles,” yet no prior complaints were
received regarding a pothole at milepost 91.30 on Interstate 70. Defendant suggested
that, “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.” Defendant asserted that plaintiff failed
to offer any evidence to prove his property damage was attributable to ODOT
personnel. Defendant contended that plaintiff failed to prove his property damage was
proximately caused by negligent maintenance on the part of ODOT.                     Defendant
explained 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 at milepost 91.30 on Interstate 70 the
last time that section of roadway was inspected before February 14, 2010. Defendant’s
maintenance records show “that one (1) pothole patching operation was conducted in
the general vicinity of plaintiff’s incident” during the six-month period prior to February
14, 2010.    The maintenance records (copy submitted) indicates that ODOT crews
patched potholes in the area including milepost 91.30 on January 14, 2010. Defendant
contended that plaintiff failed to produce evidence to establish the length of time the
particular pothole existed prior to 9:30 p.m. on February 14, 2010. Defendant stated
that, “if ODOT personnel had detected any defects they would have been promptly
scheduled for repair.”
       {¶ 3} To prevail on a claim of negligence, plaintiff 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.
      {¶ 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 on Interstate 70 prior to February 14, 2010.
      {¶ 6} 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.
      {¶ 7} 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.
       {¶ 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 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 pothole
repairs were made in the vicinity of plaintiff’s incident during January 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 that plaintiff may have suffered from the pothole.
       {¶ 9} In the instant claim, plaintiff has failed to introduce evidence sufficient to
prove that defendant maintain a known hazardous roadway condition. Plaintiff failed to
prove that his property damage was connected to any conduct under the control of
defendant, 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




MARK COPELAND

       Plaintiff

       v.
OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-03631-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:

Mark Copeland                                     Jolene M. Molitoris, Director
156 Ballman Road                                  Department of Transportation
Reynoldsburg, Ohio 43068                          1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
8/4
Filed 10/15/10
Sent to S.C. reporter 2/2/11
