[Cite as Wittekind v. Ohio Dept. of Transp., 2011-Ohio-4372.]



                                       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




JASON WITTEKIND

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-02549-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1} Plaintiff, Jason Wittekind, filed this action against defendant, Department of
Transportation (ODOT), contending his 2010 BMW was damaged as a proximate result
of negligence on the part of ODOT in maintaining a hazardous condition on Interstate
75 South in Hamilton County. Specifically, plaintiff related his passenger side tires and
rims on his vehicle were damaged as a result of striking a pothole located in the
roadway “in the far left lane of 75 South at or between mile marker 4/7 and 4/6 just north
of Cincinnati.” Plaintiff filed this complaint requesting damage recovery in the amount of
$811.08, the total cost of replacement of two tires resulting from the described incident.
Plaintiff recalled that his property-damage event occurred on February 11, 2011 at
approximately 7:45 a.m. The filing fee was paid.
        {¶2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s February 11, 2011 described occurrence. Defendant confirmed the location of
plaintiff’s pothole on I-75 in Hamilton County and defendant advised that “ODOT did not
receive any reports of the pothole or have knowledge of the pothole prior to the
incident.”
       {¶3} Defendant denied ODOT negligently maintained Interstate 75 in Hamilton
County.      Defendant noted the ODOT “Hamilton County Manager inspects all state
roadways within the county at least two times a month.”           Defendant asserted that
general maintenance and inspection is conducted to ensure a properly maintained
roadway.
       {¶4} Plaintiff filed a response. Plaintiff did not offer any evidence to establish the
length of time the pothole existed prior to 7:45 a.m. on February 11, 2011.
       {¶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 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. 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 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.
      {¶7} “[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, 47 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 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.
      {¶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 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 length of 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




JASON WITTEKIND

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-02549-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:

Jason Wittekind                                   Jerry Wray, Director
6814 Oleander Court                               Department of Transportation
Liberty Twp., Ohio 45044                          1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
4/29
Filed 5/26/11
Sent to S.C. reporter 8/26/11
