[Cite as Porter v. Ohio Dept. of Transp., Dist. 11, 2011-Ohio-4154.]



                                        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




TRICIA K. PORTER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 11

        Defendant

        Case No. 2011-02719-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Tricia Porter, filed this action against defendant, Department of
Transportation (ODOT), contending her 2007 Chevrolet Cobalt was damaged as a
proximate result 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 when “my car went into huge pothole that was in the road which
caused my left driver side tire to go flat and off the rim.” Plaintiff recalled the particular
damage incident occurred on January 31, 2011 at approximately 6:35 a.m. Plaintiff
requested damages in the amount of $303.87, 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 January 31, 2011 described occurrence.                     Defendant located the pothole
“between mileposts 14.93 and 15.02 on US 22 in Jefferson County.”                               Defendant
explained ODOT records show no reports of a pothole on US Route 22 in the vicinity of
plaintiff’s incident prior to January 31, 2011. Defendant argued plaintiff did not provide
any evidence to establish the length of time the particular pothole was present on the
roadway prior to January 31, 2011.         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 plaintiff’s incident on
US 22 the last time that section of roadway was inspected prior to January 31, 2011.
Defendant’s maintenance records show potholes were patched in the vicinity of
plaintiff’s incident on January 13, 2011, January 18, 2011, and January 31, 2011.
       {¶4}    Plaintiff filed a response suggesting that other unidentified drivers had
suffered similar property damage from hitting the same pothole a week earlier than
plaintiff’s incident.   Nonetheless, plaintiff failed to provide statements from these
individuals and defendant denied receiving any notification that any drivers had hit this
pothole during the week prior to plaintiff’s event. .
       {¶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 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 morning of January 31, 2011.
      {¶8}    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.
      {¶9}    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. There is insufficient evidence to show defendant 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 defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident three times in the three-week
period preceding January 31, 2011 does not prove negligent maintenance of the
roadway on the part of ODOT.     See Maynard v. Ohio Dept. of Transp., Ct. of Cl. No.
2004-03730-AD, 2004-Ohio-3284; Marcis v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-
05830-AD, 2004-Ohio-4830.
      {¶11} 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




TRICIA K. PORTER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 11

        Defendant

        Case No. 2011-02719-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:

Tricia K. Porter                                 Jerry Wray, Director
835 Buena Vista Blvd.                            Department of Transportation
Steubenville, Ohio 43952                         1980 West Broad Street
                                                 Columbus, Ohio 43223
SJM/laa
5/6
Filed 5/24/11
Sent to S.C. reporter 8/19/11
