[Cite as Osborne v. Ohio Dept. of Transp., 2009-Ohio-7151.]

                                      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




DEBORAH OSBORNE

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-06630-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)       On May 5, 2009, plaintiff, Deborah Osborne, was traveling south on
US Route 42 in Delaware County, when her 2005 Suzuki Forenza struck a pothole
“about 30 feet north of speed limit sign for Ashley, Ohio,” causing substantial damage to
the vehicle.
        {¶ 2} 2)       Plaintiff asserted her property damage was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in failing to
maintain the roadway free of defects such as potholes. Plaintiff filed this complaint
seeking to recover $744.24, the cost of replacement parts and related repair expenses
incurred as a result of the May 5, 2009 incident. The filing fee was paid. Plaintiff
acknowledged she maintains insurance coverage with a $250.00 deductible provision
and indicated she received a payment from her insurer in the amount of $494.24 to
defray the cost of automotive repair expense incurred. Pursuant to R.C. 2743.02(D)1

        1
          R.C. 2743.02(D) states:
        “(D) Recoveries against the state shall be reduced by the aggregate of insurance proceeds,
plaintiff’s damage claim is limited to $250.00.
        {¶ 3} 3)       Defendant denied liability in this matter based on the contention that
no ODOT personnel had any knowledge of the particular pothole prior to plaintiff’s
property damage occurrence. Defendant pointed out that its “investigation indicates
that the location of plaintiff’s incident was approximately at milepost 18.89 on US 42 in
Delaware County” and ODOT records show no complaints of potholes at that location
were received between November 5, 2008 and May 5, 2009. Defendant contended
plaintiff did not produce any evidence to establish the length of time the pothole at
milepost 18.89 existed prior to May 5, 2009.                  Defendant suggested “it is likely the
pothole existed for only a short time before the incident.”                    Furthermore, defendant
advised the ODOT “Delaware County Manager inspects all state roadways within the
county at least two times a month.”                The file is devoid of any inspection record.
Apparently, no potholes were discovered at milepost 18.89 on US Route 42 the last
time that section of roadway was inspected prior to May 5, 2009. Records show ODOT
personnel patched potholes in the vicinity of plaintiff’s incident on April 16, 2009.
                                      CONCLUSIONS OF LAW
        {¶ 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 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.
        {¶ 6} To prove a breach of the duty by defendant to maintain the highways
plaintiff must establish, by a preponderance of the evidence, that ODOT had actual or


disability award, or other collateral recovery received by the claimant. This division does not apply to civil
actions in the court of claims against a state university or college under the circumstances described in
section 3345.40 of the Revised Code. The collateral benefits provisions of division (B)(2) of that section
apply under those circumstances.”
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 pothole.      Therefore, the issue of constructive notice must be
addressed.
      {¶ 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
defective condition (pothole) 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
pothole.
      {¶ 8} 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
pothole.
      {¶ 9} 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
pothole 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




DEBORAH OSBORNE

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2009-06630-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:

Deborah Osborne                                   Jolene M. Molitoris, Director
151 E. Main Street                                Department of Transportation
Cardington, Ohio 43315                            1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
10/15
Filed 11/10/09
Sent to S.C. reporter 2/25/10
