[Cite as DeWood v. Ohio Dept. of Transp., 2010-Ohio-4787.]

                                     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




MATTHEW DEWOOD

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-01611-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Matthew DeWood, filed this action against defendant, Department
of Transportation (ODOT), alleging that he suffered rim damage to his automobile as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 76 in Medina County. Plaintiff related that he was traveling east
on Interstate 76 in the right lane “near mile post 6” when his car struck a large pothole
damaging the rim on the vehicle. Plaintiff recalled that the incident occurred on January
15, 2010 at approximately 10:15 p.m.                Plaintiff seeks recovery of damages in the
amount of $305.00, the cost of a replacement rim. 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 January 15, 2010 described occurrence. Defendant located the pothole “at
approximate state milemarker 6.00 on I-76 in Medina County.” Defendant explained
that ODOT records show no prior reports of a pothole at that location despite the fact
that the particular “section has an average daily traffic count between 19,490 and
38,470 vehicles.”       Defendant argued that plaintiff did not provide any evidence to
establish the length of time the particular pothole at milemarker 6.0 was present on the
roadway prior to January 15, 2010. 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.”
        {¶ 3} Furthermore, defendant contended that plaintiff did not offer evidence to
prove that the roadway was negligently maintained. Defendant related that the ODOT
“Medina 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 milemarker 6.00 the last time that section of
Interstate 76 was inspected before January 15, 2010. Defendant’s records show that
potholes were patched in the vicinity of plaintiff’s incident on September 3, 2009,
September 11, 2009, September 18, 2009, and January 7, 2010.
        {¶ 4} 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.
        {¶ 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 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 on Interstate 76 prior to the night of January 15, 2010.
       {¶ 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 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, 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.
       {¶ 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 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. The fact that defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident on January 7, 2010 does not
prove negligent maintenance of the roadway on the part of ODOT.
       {¶ 10} 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.
Plaintiff has failed to introduce sufficient evidence to prove that defendant maintained a
known hazardous roadway condition.       Plaintiff has failed to prove that his property
damage was connected to any conduct under the control of defendant, defendant was
negligent in maintaining the roadway area, or that there was any actionable negligent
conduct on the part of defendant in regard to pothole repair. 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.




                               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




MATTHEW DEWOOD

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-01611-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:

Matthew DeWood                  Jolene M. Molitoris, Director
212 Chester Avenue              Department of Transportation
Wadsworth, Ohio 44281           1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
5/4
Filed 6/8/10
Sent to S.C. reporter 10/1/10
