[Cite as Sumerel v. Dept. of Transp., 2010-Ohio-2185.]

                                       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




ROBERT B. SUMEREL

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-08489-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Robert B. Sumerel, related that he was traveling north on
Interstate 71 at the Dana Avenue Overpass in Hamilton County, when his 2009
Mercedes Benz S550 struck a pothole in the roadway causing tire and wheel damage to
the vehicle. Plaintiff recalled that the damage incident occurred on October 13, 2009
between 7:30 p.m. and 8:30 p.m.
        {¶ 2} 2)       Plaintiff asserted that the damage to his car was proximately caused
by negligence on the part of defendant, Department of Transportation (ODOT), in failing
to maintain the roadway free of hazards such as potholes. Plaintiff filed this complaint
seeking to recover $2,470.00, the stated cost of replacement tires and wheels. The
filing fee was paid.
        {¶ 3} 3)       Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular pothole on the roadway prior to plaintiff’s
property damage occurrence. Defendant advised that phone logs show no complaints
were on file regarding the specific damage-causing pothole which ODOT located “at
milepost 6.03 on I-71 in Hamilton County.” Defendant asserted that plaintiff failed to
offer any evidence to prove his property damage was attributable to conduct on the part
of ODOT personnel. Defendant explained that the ODOT “Hamilton 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 at
milepost 6.03 on Interstate 71 the last time that section of roadway was inspected
before October 13, 2009.       Defendant’s maintenance records show that “three (3)
pothole patching operations (were) conducted in the general vicinity in the past six
months that included milepost 6.03.”        The maintenance record (copy submitted)
indicates that ODOT crews patched potholes in the area including milepost 6.03 on
June 29, 2009, August 3, 2009, and September 18, 2009. Defendant contended that
plaintiff failed to produce any evidence to establish the length of time the pothole existed
prior to 7:30 p.m. on October 13, 2009. Defendant stated that “if ODOT personnel had
detected any potholes they would have been reported and promptly scheduled for
repair.”
       {¶ 4} 4)    Despite filing a response, plaintiff did not produce evidence to
establish the length of time that the pothole at milepost 6.03 existed prior to 7:30 p.m.
on October 13, 2009. Plaintiff acknowledged that “I have no idea how long the pothole
existed in the roadway prior to my incident.”       Plaintiff argued that due to the fact
previous pothole patches have been made in the vicinity of milepost 6.03 “proves the
pothole existed.” Plaintiff did not offer any evidence to show that the pothole his vehicle
struck had been previously patched and that the patch deteriorated.
                                CONCLUSIONS OF LAW
       {¶ 5} For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his 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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he suffered a loss
and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio
State University (1977), 76-0368-AD. However, “[i]t is the duty of a party on whom te
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 that defendant had actual notice of the
pothole.    Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the pothole must be presented.
      {¶ 8} “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of
Fahle (1950), 90 Ohio App. 195, 197-198, 48 O.O. 231, 105 N.E. 2d 429. “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.        In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, 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 ; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
      {¶ 9} 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 pothole
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458. No evidence was presented to establish the time that the
particular pothole was present. 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. Plaintiff has failed to prove that defendant had constructive
notice of the pothole. 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 that plaintiff may have suffered from
the roadway defect.




                               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




ROBERT B. SUMEREL

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2009-08489

Clerk Miles C. Durfey
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.




                                                  ________________________________
                                                  MILES C. DURFEY
                                                  Clerk

Entry cc:

Robert B. Sumerel                                 Jolene M. Molitoris, Director
8675 Bridgewater Lane                             Department of Transportation
cincinnati, Ohio 45243                            1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
1/12
Filed 2/4/10
Sent to S.C. reporter 5/14/10
