[Cite as Grassbaugh v. Ohio Dept. of Transp., 2011-Ohio-6580.]



                                      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

KEVIN W. GRASSBAUGH

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2011-04878-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶1}    On March 7, 2011, at approximately 9:00 a.m., plaintiff, Kevin
Grassbaugh, was traveling south on State Route 557 when he struck a pothole causing
substantial damage to the axles on his equipment trailer. Plaintiff relates that after the
axles broke, a “tire flew (off) & damaged 5 mail boxes that had to be repaired.”
        {¶2}    Plaintiff contends his property damage was proximately caused by
negligence on the part of defendant, Department of Transportation (“DOT”), in failing to
maintain the roadway. Consequently, plaintiff filed this complaint seeking to recover
$1,831.91, the cost of replacement parts, associated repair expenses, work loss, and
reimbursement of the filing fee. The filing fee was paid.
        {¶3}    Defendant denies liability in this matter based on the contention that no
DOT personnel had any knowledge of the pothole prior to plaintiff’s property-damage
event. Defendant notes that plaintiff’s incident occurred “at milepost 6.56 on SR 557 in
Holmes County.”         Defendant denies receiving any previous reports of the damage-
causing pothole which plaintiff encountered. Defendant suggests, “it is likely the pothole
existed for only a short time before the incident.”
        {¶4}    Furthermore, defendant asserts plaintiff has not produced evidence to
show DOT negligently maintained the roadway.           Defendant explains that the DOT
Holmes County Manager “inspects all state roadways at least two times a month.”
Apparently no potholes were discovered at milepost 6.56 on SR 557 in the vicinity of
plaintiff’s incident the last time this roadway was inspected prior to March 7, 2011.
Defendant’s records show one pothole patching operation was conducted on SR 557 at
milepost 6.56 and that was on the day of plaintiff’s incident.
                                  CONCLUSIONS OF LAW
       {¶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 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.
       {¶7}    To prove a breach of duty by defendant to maintain the highways plaintiff
must establish, by a preponderance of the evidence, that DOT 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. No evidence has shown that defendant had actual notice of the
damage-causing pothole.
       {¶8}    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 (pothole) developed. Spires v. Ohio Highway Department (1988), 61
Ohio Misc. 2d 262, 577 N.E. 2d 458. Size of the defect (pothole) 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. There is no evidence of constructive notice of the
pothole.
      {¶9}   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.
Therefore, defendant is not liable for any damage plaintiff may have suffered from the
pothole.
      {¶10} Plaintiff has not shown, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to him or that his property damage was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing pothole was connected to any conduct under the control of defendant 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

KEVIN W. GRASSBAUGH

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

        Case No. 2011-04878-AD

Acting 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
                                                 Acting Clerk

Entry cc:
Kevin W. Grassbaugh                              Jerry Wray, Director
13619 Twp. Rd. 20                                Department of Transportation
Glenmont, Ohio 44628                             1980 West Broad Street
                                                 Columbus, Ohio 43223




7/13
Filed 8/1/11
Sent to S.C. reporter 12/20/11
