[Cite as Wickersham v. Ohio Dept. of Transp., 2011-Ohio-5721.]



                                      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




JOHN WICKERSHAM,                                                 :   Case No. 2011-02883-AD

       Plaintiff,

       v.                                                        :   Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

       Defendant.



                                    MEMORANDUM DECISION


                                         FINDINGS OF FACT
        {¶ 1} On February 5, 2011, at approximately 4:45 p.m., plaintiff, John
Wickersham,         was traveling west on State Route 59 through Ravenna when the
automobile he was driving struck a pothole causing tire and rim damage to the vehicle.
        {¶ 2} Plaintiff described the roadway defect as a very large crater that covered
most of his lane of travel. Plaintiff filed this complaint seeking to recover $505.96,
representing costs for a replacement tire and rim. The $25.00 filing fee was paid.
Plaintiff’s expenses incurred were proximately caused by negligence on the part of
defendant, Department of Transportation (DOT), in maintaining the roadway.
        {¶ 3} Defendant did not specifically deny liability, rather defendant filed an
investigation report stating that DOT “is not an insurer of the highways nor believes that
it was negligent in respect to the maintenance of the area in question.” Defendant
admitted having actual “notice of the pothole on SR 59 the day of plaintiff’s incident.”
Defendant acknowledged receiving a phone call from the Portage County Sheriff’s
Office at 11:22 a.m. and that this was “the first notice of this pothole for the Portage
County Garage and the Akron Office.”
       {¶ 4} Defendant suggested the damage-causing pothole probably “existed in
that location for only a relatively short amount of time before plaintiff’s incident.”
       {¶ 5} Defendant explained DOT personnel conduct roadway inspections on a
routine basis, once or twice a month, and that “maintenance crews were performing
snow plowing activities” during February 2011 such that “every opportunity they had
they promptly did pothole patching as soon as it was reported.” Defendant pointed out
that SR 59 “was in good condition at the time and in the general vicinity of the plaintiff’s
incident..”
       {¶ 6} Plaintiff did not present any evidence to indicate the length of time the
damage-causing pothole existed prior to the February 5, 2011 incident, which occurred
around 4:45 p.m. Defendant acknowledged receiving actual notice of the pothole at
approximately 11:22 a.m. on February 5, 2011.
                                   CONCLUSIONS OF LAW
       {¶ 7} Defendant must exercise due care and diligence in the proper
maintenance and repair of highways. Hennessey v. State of Ohio Highway Department
(1985), 85-02071-AD. Breach of this duty, however, does not necessarily result in
liability. For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, 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.
       {¶ 8} 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.
       {¶ 9} To establish a breach of 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 incident. 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. Based on the
rationale of McClellan, defendant is liable for all damages claimed.         Evidence has
shown DOT had actual notice of the damage-causing pothole and failed to respond in a
reasonable time after receiving this notice. Miller v. Ohio Dept. of Transp., Ct. of Cl. No.
2005-03547-AD, 2005-Ohio-5384. Accordingly, defendant is liable to plaintiff for his
damages in the amount of $505.96, plus reimbursement of the $ 25.00 filing fee,
pursuant to the holding in Bailey v. Ohio Department of Rehabilitation and Correction
(1990), 62 Ohio Misc. 2d 19, 587 N.E.2d 990, 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




JOHN WICKERSHAM,                                  :   Case No. 2011-02883-AD

      Plaintiff,

      v.                                          :   Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

      Defendant.


                   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 $530.96, which includes the filing fee. Court costs are
assessed against defendant.




                                        DANIEL R. BORCHERT
                                        Acting Clerk




Entry cc:
John Wickersham                 Jerry Wray, Director
6226 3rd Avenue                 Department of Transportation
Kent, Ohio 44240                1980 West Broad Street
                                Columbus, Ohio 43223
SJM/laa
6/8
Filed 7/27/11
Sent to S.C. reporter 11/4/11
