[Cite as Porter v. Ohio Dept. of Transp., 2011-Ohio-6930.]



                                       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




CAROL A. PORTER

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

Case No. 2011-06200-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Carol Porter, filed this action against defendant, Ohio Department
of Transportation (ODOT), contending that her vehicle was damaged as a proximate
result of negligence on the part of ODOT in maintaining a hazardous condition on US
Route 20. In her complaint, plaintiff described the particular damage event noting that
she “hit a pothole and busted my tire wide open and bent the rim.” Plaintiff recalled the
damage event occurred on March 13, 2011, at approximately 5:00 p.m. Plaintiff
submitted photographs of the area in question taken on March 16, 2011, which depict a
partially-patched linear defect in the center of the roadway.                 The roadway defect
appears to be several feet in length, approximately 8-10 inches wide, and a few inches
deep. Plaintiff seeks recovery of damages in the amount of $292.53, the stated total
amount for a replacement tire and related repair expenses. The filing fee was paid.
        {¶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 incident. Defendant related that plaintiff’s incident occurred “at approximate
milemarker 1.05 on US 20 in Lorain County.”                  Defendant denied receiving any prior
calls or complaints about a pothole or potholes in the vicinity of that location. Defendant
asserted that plaintiff did not offer any evidence to establish the length of time the
pothole existed on US 20 prior to her incident.
       {¶3}   Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Lorain 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 in the vicinity of plaintiff’s incident the last time that section of
roadway was inspected prior to March 13, 2011.            The claim file is devoid of any
inspection record. Defendant argued that plaintiff has failed to offer any evidence to
prove her property damage was attributable to any conduct on the part of ODOT
personnel.    Defendant stated that, “[a] review of the six-month maintenance history
[record submitted] for the area in question reveals that one (1) pothole patching
operation was conducted within the incident location.” Plaintiff did not file a response.
       {¶4}   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. 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.
       {¶5}   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.
       {¶6}   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 conditions or defects 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 insufficient evidence that defendant had actual notice of
the pothole on US 20 prior to March 13, 2011.
       {¶7}    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.
       {¶8}    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. Insufficient evidence has been submitted to show that ODOT had constructive
notice of the pothole.
       {¶9}    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. A pothole patch that deteriorates in less than ten days is prima
facie evidence of negligent maintenance.           See Matala v. Ohio Department of
Transportation, Ct. of Cl. No. 2003-01270-AD, 2003-Ohio-2618. However, a pothole
patch which may or may not have deteriorated over a longer time frame does not
constitute, in and of itself, conclusive evidence of negligent maintenance. See Edwards
v. Ohio Department of Transportation, District 8, Ct. of Cl. No. 2006-01343-AD, jud,
2006-Ohio-7173. Plaintiff has failed to establish that the pothole that damaged her
vehicle had been previously patched or that the pothole was patched with material
subject to rapid deterioration. Furthermore, plaintiff also failed to establish the general
time frame when the roadway condition depicted in her photographs initially appeared.
Plaintiff, in the instant claim, has not produced sufficient evidence to infer 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.
       {¶10} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained known hazardous roadway conditions. Plaintiff failed
to prove that her property damage was connected to any conduct under the control of
defendant, or 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




CAROL A. PORTER

    Plaintiff

    v.

OHIO DEPT. OF TRANSPORTATION

    Defendant
Case No. 2011-06200-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:

Carol A. Porter                                   Jerry Wray, Director
918 Sandalwood Court                              Department of Transportation
Elyria, Ohio 44035                                1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
8/18
Filed 8/23/11
Sent to S.C. reporter 1/19/12
