[Cite as Pinnick v. Ohio Dept. of Transp., 2011-Ohio-3962.]



                                       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




LINDA R. PINNICK

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION, DISTRICT 3

       Defendant

        Case No. 2010-12761-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Linda Pinnick, filed this action against defendant, Ohio Department
of Transportation (ODOT), contending that her 2005 Pontiac Bonneville was damaged
as a proximate result of negligence on the part of ODOT in maintaining a hazardous
condition on State Route 224 in Medina County. In her complaint, plaintiff described the
particular damage event noting that she was traveling eastbound on SR 224 when
“[J]ust before the Rt.# 261 exit [she] struck a large pothole in the right hand lane with
driver’s side front tire.” In her complaint, plaintiff recorded that the damage incident
occurred “on or about December 12, 2010, at 1:00 p.m.” Plaintiff seeks recovery of
damages in the amount of $237.44, the stated total amount for replacement parts and
vehicle repair costs. 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
December 12, 2010 incident. Defendant related that plaintiff’s incident “on SR 224
which, also, overlaps I-76 is just before milepost 11.71 in Medina County.” Defendant
denied receiving any prior calls or complaints about a pothole or potholes in the vicinity
of that location despite the fact that “[t]his section of roadway on SR 224/I-76has an
average daily traffic count” of over 40,000 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 11.71 on SR 224/I-76 prior to 1:00 p.m. on December 12, 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} Additionally, defendant contended that plaintiff did not offer any evidence to
prove that the roadway was negligently maintained. Defendant advised 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 plaintiff’s incident the last time that section of
roadway was inspected prior to December 12, 2010. The claim file is devoid of any
inspection record. Defendant argued that plaintiff has failed to offer any evidence to
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 six (6) pothole patching
operations were conducted at this specific location and the last repair was on December
12, 2010, which is the same day as plaintiff’s incident.” (Emphasis added.) Defendant
noted, “that if ODOT personnel had detected any defects they would have been
promptly scheduled for repair.”
       {¶ 4} Plaintiff did not file a response.
       {¶ 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 SR 224/I-76 prior to the afternoon 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. A pothole patch which deteriorates in less than ten days is prima
facie evidence of negligent maintenance. Matala v. Ohio Department of Transportation,
Ct. of Cl. No. 2003-01270-AD, 2003-Ohio-2618; Schrock v. Ohio Dept. of Transp., Ct. of
Cl. No. 2005-02460-AD, 2005-Ohio-2479.           According to the investigation report
submitted by defendant, plaintiff’s vehicle was damaged by a pothole that had been
patched as recently as December 11, 2010 and the repair patch had failed by
December 12, 2010.
       {¶ 11} The fact that the pothole plaintiff’s car struck deteriorated in a time frame
of less than one week warrants application of the standard expressed in Matala; Fisher
v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-04869-AD, 2007-Ohio-5288. See also
Romes v. Ohio Dept. Of Transp., Ct. of Cl. No. 2008-01286-AD, 2008-Ohio-4624.
Negligence in this action has been proven and defendant is liable for the damage
claimed, plus filing fee costs.
                              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




LINDA R. PINNICK

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION, DISTRICT 3

      Defendant

      Case No. 2010-12761-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 plaintiff in the amount of $262.44, which includes the filing fee. Court costs are
assessed against defendant.




                                        DANIEL R. BORCHERT
                                        Deputy Clerk

Entry cc:

Linda R. Pinnick                        Jerry Wray, Director
216 Hermann Street                      Department of Transportation
Barberton, Ohio 44203                   1980 West Broad Street
                                Columbus, Ohio 43223
SJM/laa
4/14
Filed 4/27/11
Sent to S.C. reporter 8/10/11
