[Cite as Williams v. Ohio Dept. of Transp., 2011-Ohio-3546.]

                                       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




NITA S. WILLIAMS

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-12893-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Nita S. Williams, filed this action against defendant, Department
of Transportation (ODOT), contending her 1998 Buick Lesabre was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 75 North in Montgomery County. Specifically, plaintiff noted her
car was damaged when the vehicle struck a pothole “in the second lane from the
concrete wall close to the Edwin C. Moses Blvd. exit” on Interstate 75 North. Plaintiff
recalled her damage incident occurred on November 28, 2010 at approximately 10:00
p.m. In her complaint, plaintiff requested damages in the amount of $308.54, the cost of
replacement parts and related repair expenses. Plaintiff also requested an additional
$150.00 in damages she described as “inconvenience (and) car is rattling.” Plaintiff did
not offer any evidence to substantiate her additional damage claim. Payment of the
filing fee was waived.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the damage-causing pothole on Interstate 75
North prior to plaintiff’s occurrence. Defendant advised ODOT “records indicate that no
calls or complaints were received regarding the pothole in question” prior to plaintiff’s
damage event.      Defendant further advised ODOT’s “investigation indicates that the
location of plaintiff’s incident would be at state milepost 51.30 or county milepost 10.40
on I-75 in Montgomery County.” Defendant denied receiving any prior notice of the
pothole at milepost 51.30 despite the fact the particular “section of roadway on I-75 has
an average daily traffic count between 99,440 and 113,330 vehicles.”            Defendant
argued plaintiff failed to produce any evidence to establish the length of time the pothole
at milepost 51.30 existed prior to 10:00 p.m. on November 28, 2010.             Defendant
suggested “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.”
       {¶ 3} Defendant explained ODOT first received notice of the pothole at milepost
51.30 when ODOT Montgomery County Manager, John Glover, was contacted by the
City of Dayton Police and informed the pothole had been patched by City of Dayton
road crews. Apparently the problem with the pothole at milepost 51.30 was addressed
by City of Dayton personnel after plaintiff’s damage occurrence. Defendant described
the repair performed by City of Dayton personnel as a “temporary patch.” Defendant
submitted an e-mail from John Glover referencing his experience with the pothole at
milepost 51.30. Glover recorded he received a courtesy call from the City of Dayton
Police and was told “they had responded and that the situation was temporarily
secured.” Glover also recorded, “I was checking the location on my way to work and
began planning the repair.”
       {¶ 4} Defendant asserted plaintiff failed to offer any evidence to prove her car
was damaged as a proximate cause of negligent roadway maintenance on the part of
ODOT. Defendant argued plaintiff failed to prove her property damage was the result of
any conduct attributable to ODOT personnel.                Defendant pointed out ODOT
“Montgomery County crews travel each state highway twice a month in Montgomery
County and look for potholes, low berms, and other safety hazards and records any
deficiencies on the Bi-Weekly Road Inspection Reports” (copies submitted). According
to the submitted records, Interstate 75 North including the area around milepost 51.30
was last inspected prior to November 28, 2010 on November 22, 2010 no roadway
defects (pothole) at milepost 51.30 was discovered incident to the November 22, 2010
inspection.   Defendant related, “if ODOT personnel had detected any defects they
would have been promptly scheduled for repair.”
      {¶ 5} Plaintiff filed a response.    Plaintiff did not provide any evidence to
establish the length of time the particular damage-causing pothole at milepost 51.30 on
Interstate 75 North existed prior to 10:00 p.m. on November 28, 2010.
      {¶ 6} 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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that she 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.
      {¶ 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 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. There is no evidence that defendant had actual notice of the
pothole.    Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the pothole must be presented.
      {¶ 9} “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or working knowledge.” In re
Estate of Fahle (1950), 90 Ohio App. 195, 197-198, 48 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.
      {¶ 10} 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 was presented to establish the length of time
that the particular pothole was present. Size of the defect (pothole) 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. Plaintiff has failed to prove that defendant had
constructive notice of the pothole. 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 that plaintiff
may have suffered from the roadway defect. Knight v. Ohio Dept. of Transp., Ct. of Cl.
No. 2010-03690-AD, 2010-Ohio-6546.


                               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
NITA S. WILLIAMS

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-12893-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:

Nita S. Williams                                  Jerry Wray, Director
3081 Valerie Arms Drive Apt. 6                    Department of Transportation
Dayton, Ohio 45405                                1980 West Broad Street
                                                  Columbus, Ohio 43223

RDK/laa
3/21
Filed 4/5/11
Sent to S.C. reporter 7/8/11
