[Cite as Owens v. Ohio Dept. of Transp., Dist. 2, 2010-Ohio-5822.]

                                       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




GERALD L. OWENS

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 2

        Defendant

Case No. 2009-08641-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       On April 5, 2008, at approximately 6:20 a.m., plaintiff, Gerald Owens,
was traveling on Interstate 75 “near the 108 Marker” in Lucas County when his 2002
Jaguar struck a pothole causing tire, rim, and strut damage to the vehicle. Plaintiff
contended the damage to his car was proximately caused by negligence on the part of
defendant, Department of Transportation (ODOT), in maintaining a hazardous condition
on the roadway. Plaintiff filed this complaint requesting damages in the amount of
$2,500.00, representing stated automotive repair costs. In his complaint, plaintiff noted
the pothole his vehicle struck caused damage to two tires, two rims, and two struts.
Attached to the complaint was a copy of a vehicle repair estimate with a total estimated
repair costs of $3,305.92. This estimate represents the total repair cost for replacing
two tires, four rims, and four struts. The filing fee was paid.
        {¶ 2} 2)       Defendant filed an investigation report admitting liability for plaintiff’s
property damage caused by the pothole on Interstate 75. Defendant asserted plaintiff’s
damages in this claim should be limited to the total cost of replacing two tires, two rims,
and two struts.
                               CONCLUSIONS OF LAW
      {¶ 3} 1)    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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he 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. This court, as trier of
fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14
Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477.
      {¶ 4} 2)    Defendant has the duty to maintain its highway 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} 3)    In order to recover in any suit involving injury 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.    Plaintiff has proven his property damage was proximately caused by
negligence on the part of ODOT in failing to timely correct a hazardous roadway
condition. Fite v. Dept. of Transp., Ct. of Cl. No. 2009-05757-AD, jud. aff. (12-18-09),
2009-Ohio-7124.
      {¶ 6} 4)    As trier of fact, this court has the power to award reasonable
damages based on evidence presented. Sims v. Southern Ohio Correctional Facility
(1988), 61 Ohio Misc. 2d 239, 577 N.E. 2d 160.
       {¶ 7} 5)    Damage assessment is a matter within the function of the trier of fact.
Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462.
Reasonable certainty as to the amount of damages is required, which is that degree of
certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement
Sys. Of Ohio (1995), 102 Ohio App. 3d 782, 658 N.E. 2d 31.
       {¶ 8} 6)    Plaintiff has suffered damages in the amount of $1,758.64, the total
cost of replacing two tires, two rims, and two struts. Therefore, defendant is liable to
plaintiff in the amount of $1,758.64, the cost of automotive repair, plus the $25.00 filing
fee, which may be awarded as costs pursuant to R.C. 2335.19. See Bailey v. Ohio
Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d
990.




                               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




GERALD L. OWENS

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 2

       Defendant
       Case No. 2009-08641-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 plaintiff in the amount of $1,783.64, which includes the filing fee. Court costs are
assessed against defendant.




                                          DANIEL R. BORCHERT
                                          Deputy Clerk

Entry cc:

Gerald L. Owens                           Jolene M. Molitoris, Director
405 Quackenbos Street N.W.                Department of Transportation
Washington, DC 20011                      1980 West Broad Street
                                          Columbus, Ohio 43223
RDK/laa
6/18
Filed 8/3/10
Sent to S.C. reporter 11/23/10
