[Cite as Steiger v. Ohio Dept. of Transp., 2011-Ohio-3772.]



                                       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




MICHAEL P. STEIGER

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION, DIST. 11

        Defendant


        Case No. 2010-11323-AD


Clerk Miles C. Durfey


MEMORANDUM DECISION


                                          FINDINGS OF FACT
        {¶ 1} On October 2, 2010, at approximately 10:00 a.m., plaintiff, Michael P.
Steiger, was traveling north on Interstate 77 approaching Route 36 in Tuscarawas
County, when his automobile struck a “piece of concrete sticking up” in the traveled
portion of the roadway. The cement piece caused tire and rim damage to plaintiff’s
vehicle.
        {¶ 2} Plaintiff filed this complaint seeking to recover $541.84, his costs for
automotive repair. Plaintiff asserted that he sustained these damages as a result of
negligence on the part of defendant, Ohio Department of Transportation (ODOT), in
maintaining the roadway. The filing fee was paid.
        {¶ 3} Defendant has denied liability based on the fact that it had no knowledge “of
the pothole on I-77 prior to plaintiff’s incident.”           Defendant related that ODOT’s
investigation documents that the location of the roadway defect “would be at state
milepost 64.8 or county milepost 4.82 on I-77 in Tuscarawas County.”             Defendant
denied receiving any prior calls or complaints about a pothole in the vicinity of that
location despite the fact that “[t]his section of roadway has an average daily traffic
count” of over 10,000 vehicles.         Defendant asserted that plaintiff did not offer any
evidence to establish the length of time that any pothole existed in the vicinity of
milepost 64.8 on I-77 prior to plaintiff’s incident. 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.”
       {¶ 4} Additionally, defendant contended that plaintiff did not offer any evidence to
prove that the roadway was negligently maintained. Defendant advised that the ODOT
“Tuscarawas 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
roadway defect was discovered in the vicinity of plaintiff’s incident the last time that
section of roadway was inspected prior to October 2, 2010. The claim file is devoid of
any inspection record. Defendant argued that plaintiff has failed to offer any evidence to
prove that his property damage was attributable to any conduct on the part of ODOT
personnel. Defendant asserted that “the roadway was in relatively good condition at the
time of plaintiff’s incident.”     Defendant stated that, “[a] review of the six-month
maintenance history [record submitted] for the area in question reveals that no (0)
pothole patching operations were conducted in the general vicinity of northbound I-77.”
Defendant noted, “that if ODOT personnel had detected any defects they would have
been promptly scheduled for repair.”
       {¶ 5} Plaintiff did not file a response.
                                        CONCLUSIONS OF LAW
       {¶ 6} 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. 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.
      {¶ 7} 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.
      {¶ 8} 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 no evidence that defendant had actual notice of the
roadway defect on I-77 prior to the morning of October 2, 2010.
      {¶ 9} 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.
      {¶ 10} 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, 31 Ohio Misc. 2d 1, 31
OBR 64, 507 N.E. 2d 1179.        “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.
       {¶ 11} Generally, in order to recover in a suit involving damage proximately
caused by roadway conditions including defects plaintiff must prove that either:         1)
defendant had actual or constructive notice of the defect 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 not produced any evidence to infer that defendant, in
a general sense, maintains its highways negligently or that defendant’s acts caused the
defective conditions. Herlihy v. Ohio Department of Transportation (1999), 99-07011-
AD. Therefore, defendant is not liable for any damage plaintiff may have suffered from
the roadway defect.
       {¶ 12} 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 his 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




MICHAEL P. STEIGER

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

        Case No. 2010-11323-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:

Michael P. Steiger                               Jerry Wray, Director
1559 Groton Drive                                Department of Transportation
Hudson, Ohio 44236                               1980 West Broad Street
                                                 Columbus, Ohio 43223
SJM/laa
3/17
Filed 4/13/11
Sent to S.C. reporter 7/29/11
