[Cite as Alexander v. Ohio Dept. of Transp., Dist. 6, 2011-Ohio-7069.]



                                       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




KEITH B. ALEXANDER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6

        Defendant

Case No. 2011-10215-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT
        {¶1}     In his complaint, plaintiff, Keith Alexander, relates that on August 7, 2011,
at approximately 9:30 a.m. he was traveling south on Interstate 71 when “my motorcycle
struck a pot hole so significant that it dislodged the left rear-view mirror assembly
causing that assembly to fall to the pavement in ruin.”
        {¶2}     Plaintiff filed this complaint seeking to recover $366.49, the replacement
cost for the mirror. Plaintiff asserted he incurred these damages as a proximate result
of negligence on the part of defendant, Department of Transportation (DOT), in
maintaining the roadway. The $25.00 filing fee was paid.
        {¶3}     Defendant denies liability in this matter based on the contention that no
DOT personnel had any knowledge of the pothole prior to plaintiff’s property-damage
event. Defendant states the pothole was located near milepost 92.5 on I-71 in Franklin
County. Defendant notes that DOT records show six complaints for the months of July
and August; however, “none of them are near the area of plaintiff’s incident.” Defendant
denies receiving any other reports of the damage-causing pothole prior to the time
which plaintiff encountered it.
        {¶4}    Furthermore, defendant asserts plaintiff has not produced evidence to
show DOT negligently maintained the roadway.                    Defendant explains that the DOT
Franklin County Manager “inspects all state roadways within the county at least two
times a month.” Apparently no potholes were discovered at milepost 92.5 on I-71 the
last time this roadway was inspected prior to August 7, 2011. Defendant stated that “[a]
review of the six-month maintenance history [record submitted] also reveals that general
maintenance and inspection is conducted to ensure a properly maintained roadway.”
        {¶5}    Plaintiff filed a response essentially reiterating the allegations of his
complaint and asserting defendant should bear liability for the defective roadway. In
addition, plaintiff references a prior case he filed in which defendant executed a
settlement agreement and plaintiff received compensation. Finally, plaintiff suggested
he should prevail in this claim, by default, because defendant failed to timely file its
investigation report.1
                                        CONCLUSIONS OF LAW
        {¶6}    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.
        {¶7}    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. To prove a
breach of duty by defendant to maintain the highways plaintiff must establish, by a
preponderance of the evidence, that DOT had actual or constructive notice of the
precise condition or defect alleged to have caused the accident. McClellan v. ODOT

        1
           The court notes that Civ.R. 55(D) in pertinent part states, “No judgment by default shall be
entered against this state . . . or agency . . . unless the claimant establishes his claim . . . by evidence
satisfactory to the court.” A default judgment against the state may not be granted solely on procedural
errors made by the defendant. Upon review, plaintiff’s request for default judgment is DENIED.
(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 defendant had actual notice of the pothole. Therefore, in order to recover
plaintiff must offer proof of defendant’s constructive notice of the condition or evidence
to establish negligent maintenance.
       {¶8}   “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of
Fahle (1950), 90 Ohio App. 195, 197-198, 47 O.O. 231, 105 N.E. 2d 429. “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. In order for there to be constructive notice,
plaintiff must prove, by a preponderance of the evidence, 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; Gelarden v. Ohio Dept. of Transp., Dist. 4, Ct. of Cl.
No. 2007-02521-AD, 2007-Ohio-3047.
       {¶9}   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 pothole
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458. No evidence has shown that ODOT had constructive notice
of the pothole.
       {¶10} 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. 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 pothole.
       {¶11} 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




KEITH B. ALEXANDER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6

        Defendant

         Case No. 2011-10215-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:

Keith B. Alexander                                Jerry Wray, Director
720 S. 2nd Street                                 Department of Transportation
Heath, Ohio 43056                                 1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
11/3
Filed 11/8/11
Sent to S.C. reporter 4/5/12
