[Cite as Parsons v. Ohio Dept. of Transp., 2011-Ohio-4793.]



                                      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




MAUREEN PARSONS

       Plaintiff

       v.

THE OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-02565-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT
        {¶1}     1) In her complaint, plaintiff, Maureen Parsons, alleges that on January
29, 2011, at approximately 1:30 p.m., she was traveling south on Interstate 75, “in the
southbound exit ramp for the Glendale Milford Road Exit” when her automobile struck a
series of potholes that were “in the shadows under a bridge and are not visible until too
late to avoid them.” Plaintiff pointed out that there are “numerous potholes in the area
that is approximately 60 feet long and 4 feet wide. The many different patches indicate
that this area is a continuous problem area.” Plaintiff submitted photographs taken
February 12, 2011, depicting the area and stated “the potholes have been repaired
numerous times but the repairs are not satisfactory for a 65 mph roadway. There are
no warning signs posted before the area to warn of the bumps or to slow down.” Upon
review, the trier of fact notes one of the photographs submitted by plaintiff shows a
massive pavement deterioration that spans nearly the entire length of roadway beneath
the overpass. The defect is extensive and shows evidence of chronic failed repair
efforts.
      {¶2}    2) Plaintiff filed this complaint seeking to recover $376.12, the cost of two
replacement tires resulting from the January 29, 2011 incident. Plaintiff asserted she
incurred these damages as a proximate result of negligence on the part of defendant,
Department of Transportation (DOT), in maintaining the roadway. The $25.00 filing fee
was paid.
      {¶3}    3) Defendant located the pothole at milepost 14.26 in Hamilton County.
According to defendant, one complaint regarding potholes at this location was received
on January 27, 2011, and the repair was made the same day.
      {¶4}    4) Defendant explained DOT employees conduct roadway inspections on
all state roadways on a routine basis, “at least two times a month.” Defendant denied
DOT employees were negligent in regard to roadway maintenance.
      {¶5}    5) Plaintiff did not file a response.
                                    CONCLUSIONS OF LAW
      {¶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}    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.
      {¶8}    Plaintiff has provided sufficient evidence for the trier of fact to find
constructive notice of the pothole has been proven. The photographic evidence plaintiff
supplied establishes that the damage-causing defect was massive in size and
constituted a recurring problem defendant failed to properly correct. Pursuant to the
holding of Fite v. Ohio Dept. of Transp., Ct. of Cl. No. 2009-05757, 2009-Ohio-7124,
“the massive size of a defect coupled with knowledge that the pothole presented a
recurring problem is sufficient to prove constructive notice.” at ¶10.
       {¶9}   Additionally, the trier of fact finds it is extremely unlikely periodic
inspection activity would not have discovered the damage-causing defect at milepost
14.26. The credibility of witnesses and the weight attributable to their testimony are
primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 39
O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to
believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court does not find defendant’s
assertions persuasive that routine patrols were conducted or that the roadway was
adequately maintained. Conversely, the trier of fact finds that there is no evidence that
the roadway was routinely inspected or that the inspection was adequate. Kornokovich
v. Ohio Dept. Of Transp., Ct. Of Cl. No. 2009-05641-AD, 2009-Ohio-7123.
       {¶10} Moreover, 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 January 27, 2011, and the repair patch
had failed by January 29, 2011.
       {¶11} The fact that the pothole plaintiff’s car struck deteriorated in a time frame
of less than two days 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 to plaintiff for all
damages claimed, $376.12, plus the $25.00 filing fee costs. Bailey v. Ohio Department
of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.
                                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




MAUREEN PARSONS

        Plaintiff

        v.

THE OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2011-02565-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 $401.12, which includes the filing fee. Court costs are
assessed against defendant.



                                                 ________________________________
                                                 DANIEL R. BORCHERT
                                                 Deputy Clerk

Entry cc:

Maureen Parsons                                  Jerry Wray, Director
8523 Deer Path                                   Department of Transportation
West Chester, Ohio 45069                         1980 West Broad Street
                                                 Columbus, Ohio 43223
SJM/laa
6/3
Filed 6/15/11
Sent to S.C. reporter 9/21/11
