[Cite as Anthony v. Ohio Dept. of Transp., 2011-Ohio-6898.]




                                      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
HARRY MICHAEL ANTHONY

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant



Case No. 2011-05548-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, Harry Anthony, filed this action against defendant, Department of
Transportation (ODOT), contending he suffered property damage as a proximate result
of negligence on the part of ODOT in maintaining a hazardous condition on Interstate
71 northbound “at Trimble Ave.” Plaintiff recalled the described incident occurred on
January 22, 2011 at approximately 10:30 p.m. Plaintiff requested damage recovery in
the amount of $889.95, the stated total cost of replacement tires and related repair
expenses. The filing fee was paid.
        {¶2}    Defendant determined plaintiff’s incident occurred “at milepost 5.51 on I-
71 in Hamilton County.” Defendant denied liability based on the contention that no
ODOT personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s January 22, 2011 incident. Defendant related that “[t]his section of roadway
has an average daily traffic count” of over 110,000 vehicles.           Defendant asserted
plaintiff did not offer any evidence to establish the length of time that any pothole
existed at milepost 5.51 on I-71 prior to his incident.
        {¶3}    Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised 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 in the vicinity of plaintiff’s incident the last time that section of
roadway was inspected prior to January 22, 2011. Defendant argued that plaintiff has
failed to offer any evidence to prove his property damage was attributable to any
conduct on the part of ODOT personnel. Defendant asserted that the roadway was “in
relatively good condition at the time of plaintiff’s incident.” Defendant stated that, “[a]
review of the six-month maintenance history [record submitted] for the area in question
reveals that two (2) pothole patching operations were performed on I-71 near milepost
5.51.” Defendant noted, “that if ODOT personnel had detected any potholes they would
have been reported and promptly scheduled for repair.”
       {¶4}   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. This court, as trier of
fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14
Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477.
       {¶5}   Defendant had 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}     Defendant denied receiving any complaints before January 22, 2011,
regarding a pothole on Interstate 71 near milepost 5.51. Plaintiff did not file a response.
       {¶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.
       {¶8}     Generally, 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. Plaintiff has not submitted any evidence to establish ODOT had
actual notice of the pothole condition prior to January 22, 2011. Therefore, in order to
recover plaintiff must produce evidence to prove constructive notice of the defect or
negligent maintenance.
       {¶9}     “[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.
       {¶10} The trier of fact is precluded from making an inference of defendant’s
constructive notice, unless evidence is presented in respect to the time the defective
condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d
262, 577 N.E. 2d 458. Size of the defect 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.
       {¶11} In order for there to be constructive notice, plaintiff must show 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. “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. No evidence has
shown ODOT had constructive notice of the pothole.
       {¶12} Plaintiff has not produced sufficient 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.
       {¶13} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained known hazardous roadway conditions. Plaintiff failed
to prove that his property damage was connected to any conduct under the control of
defendant, or that defendant was negligent in maintaining the roadway area, or that
there was any actionable 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.
Consequently, plaintiff’s claim is denied.




                                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



HARRY MICHAEL ANTHONY

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant


Case No. 2011-05548-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:

Harry Michael Anthony                             Jerry Wray, Director
458 Little Creek Drive                            Department of Transportation
Lebanon, Ohio 45036                               1980 West Broad Street
                                                  Columbus, Ohio 43223
8/3
Filed 8/11/11
Sent to S.C. reporter 1/3/12
