[Cite as Kliner v. Ohio Dept. of Transp., 2010-Ohio-6622.]

                                       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




MANDA MICHELLE KLINER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-05790-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Manda Michelle Kliner, filed this action against defendant,
Department of Transportation (ODOT), contending her 2008 Subaru Legacy was
damaged as a proximate cause of negligence on the part of ODOT personnel in
maintaining a hazardous condition on US Route 22 in Jefferson County.                   In her
complaint, plaintiff provided a narrative description of her damage event recording she
was traveling east on US Route 22 “approaching the Bloomingdale exit and was driving
in the left lane” when her vehicle “struck a snow filled pot hole” causing tire and wheel
damage necessitating replacement. Plaintiff recalled the particular damage incident
occurred on February 13, 2010 at approximately 5:00 p.m. Plaintiff requested damages
in the amount of $199.98, the total cost of replacement parts. The $25.00 filing fee was
paid and plaintiff requested reimbursement of that cost along with her damage claim.
        {¶ 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 February 13, 2010 described occurrence. Defendant located the pothole “at
milepost 3.10 on US 22 in Jefferson County.” Defendant explained ODOT records
show no reports of a pothole on US Route 22 prior to February 13, 2010. Defendant
argued plaintiff did not provide any evidence to establish the length of time the particular
pothole was present on the roadway prior to February 13, 2010. Defendant suggested,
“it is likely the pothole existed for only a short time before the incident.”
       {¶ 3} Furthermore, defendant contended plaintiff did not offer any evidence to
prove the roadway was negligently maintained. Defendant related the ODOT “Jefferson
County Manager inspects all state roadways within the county at least two times a
month.” Apparently, no potholes were discovered in the vicinity of milepost 3.10 on US
22 the last time that section of roadway was inspected prior to February 13, 2010.
Defendant’s maintenance records show potholes were patched in the vicinity of
plaintiff’s incident on November 9, 2009, November 13, 2009, January 25, 2010, and
February 2, 2010.
       {¶ 4} 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.
       {¶ 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 defendant had actual notice of the pothole
on US Route 22 prior to the afternoon of February 13, 2010.
      {¶ 7} Therefore, to find liability plaintiff must prove 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 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 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 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 defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident four times in the three-month
period preceding February 13, 2010 does not prove negligent maintenance of the
roadway on the part of ODOT. Plaintiff has not produced sufficient evidence to infer
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
defendant maintained a known hazardous roadway condition. Plaintiff has failed to
prove that her 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 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.




                              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




MANDA MICHELLE KLINER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-05790-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:

Manda Michelle Kliner                           Jolene M. Molitoris, Director
81 State Hwy. 250                               Department of Transportation
Adena, Ohio 43901                               1980 West Broad Street
                                                Columbus, Ohio 43223
RDK/laa
8/30
Filed 10/7/10
Sent to S.C. reporter 1/21/11
