[Cite as Lanterman v. Dept. of Transp., 2011-Ohio-3547.]

                                      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




CINDY ANN LANTERMAN

       Plaintiff

       v.

DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2011-01046-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Cindy Ann Lanterman, filed this action against defendant,
Department of Transportation (ODOT), contending her 2008 Pontiac G6 was damaged
as a proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 80 in Trumbull County. Specifically, plaintiff explained the tire on
her automobile was damaged when the vehicle struck “a very large pothole” on
Interstate 80 west “from Belmont Ave.” Plaintiff recalled her damage incident occurred
at approximately 9:15 p.m. on December 12, 2010. In her complaint, plaintiff requested
damage recovery in the amount of $186.21, the cost of replacement parts and related
repair expense incurred. The filing fee was paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s incident. Defendant advised the pothole plaintiff’s vehicle struck was located
“at county milepost 4.21 or state milepost 229.15 for westbound I-80 in Trumbull
(County).” Defendant reported ODOT did not receive any prior complaints of a pothole
at that location despite the fact the particular “section of highway has an average daily
count between 23,860 and 37,210 vehicles(s).” Defendant argued plaintiff failed to
produce any evidence to establish the length of time the pothole existed at milepost
229.15 prior to December 12, 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 contended plaintiff failed to prove her property damage was the
result of negligent roadway maintenance on the part of ODOT. Defendant related the
ODOT “Trumbull 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 December 12, 2010. Defendant asserted that plaintiff
did not 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 in” the general vicinity of plaintiff’s incident. This pothole
was repaired on July 29, 2010. Defendant related, “if ODOT personnel had detected
any defects they would have promptly been scheduled for repair.”
        {¶ 4} Plaintiff filed a response pointing out that the pothole her car struck was at
a location “soon after getting onto Route 80 and before or near the Girard Exit.” Plaintiff
further pointed out, “[t]his area is under construction and the number of pothole in this
area is COUNTLESS.” Plaintiff stated, “I can say with certainty that the pothole that I hit
was not in fact NEW as ODOT alleges.”           Plaintiff did not provide any evidence to
establish the length of time the pothole her vehicle struck existed prior to 9:15 p.m. on
December 12, 2010.        Plaintiff noted, “[t]he number of potholes and obstacles (on
Interstate 80) is both dangerous and embarrassing.” Plaintiff disputed defendant’s claim
regarding the frequency of roadway inspections.
        {¶ 5} 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.
      {¶ 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} 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
pothole on Interstate 80 prior to the night of December 12, 2010.
      {¶ 8} 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.
      {¶ 9} 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. 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 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.     The fact that defendant’s “Maintenance History” reflects one
pothole repair was made in the vicinity of plaintiff’s incident in July 2010 does not prove
negligent maintenance of the roadway on the part of ODOT. 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 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




CINDY ANN LANTEMAN

      Plaintiff
        v.

DEPT. OF TRANSPORTATION

        Defendant

         Case No. 2011-01046-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:

Cindy Ann Lanteman                                Jerry Wray, Director
541 Woodbury Court                                Department of Transportation
Canfield, Ohio 44406                              1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
3/21
Filed 4/5/11
Sent to S.C. reporter 7/8/11
