[Cite as Barnhart v. Ohio Dept. of Transp., 2011-Ohio-3958.]



                                      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




MATT BARNHART

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-12401-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Matt Barnhart, filed this action against defendant, Ohio Department
of Transportation (ODOT), alleging that his tire and rim were damaged on December 1,
2010, at approximately 8:00 a.m. as a proximate result of negligence on the part of
ODOT in maintaining a hazardous condition on US Route 30. Specifically, plaintiff
claimed that as he was approaching the Auglaize River bridge in the westbound lane, “I
switched lanes from right to left. Just as I began to switch lanes I felt a huge rut in the
road then my car got louder. I thought something bad had happened so I drove over to
the median and saw that I blew a tire.” Plaintiff seeks recovery of damages in the
amount of $273.99, the stated cost of a replacement tire and rim plus reimbursement of
the $25.00 filing fee. The filing fee was paid.
        {¶ 2} Plaintiff submitted photographs of the roadway depicting the approach to
the bridge.        The photographs include a closeup view of an expansion joint which
appears to be intact, and a view of the roadway approaching the bridge deck. The
transition area spanning the roadway appears level, smooth, and without visible defects.
        {¶ 3} Defendant denied liability based on the contention that no ODOT personnel
had any knowledge of the particular damage-causing pothole prior to plaintiff's
December 1, 2010 incident. Defendant related that ODOT's investigation documents
that plaintiff’s incident occurred “at milepost 2.43 on US 30.” Defendant denied receiving
any prior calls or complaints about a pothole or potholes in the vicinity of that location
despite the fact that “[t]his section of roadway has an average daily traffic count” of over
5,000 vehicles. Defendant asserted that plaintiff did not offer any evidence to establish
the length of time that any pothole existed in the vicinity of milepost 2.43 on US Route
30 prior to 8:00 a.m. on December 1, 2010. Defendant suggested that “it is more likely
than not that the pothole existed in that location for only a relatively short amount of time
before plaintiff's incident.”
       {¶ 4} Additionally, defendant contended that plaintiff did not offer any evidence to
prove that the roadway was negligently maintained. Defendant advised that the District
One Bridge Engineer Ted Foster “inspected this area of US 30 on December 10, 2010,
and he did not find any deficiencies on the approach to the Auglaize River Bridge or on
the bridge itself. He took photos of the area that he inspected.” Those photographs
(copies submitted) show the area of the bridge deck and the roadway approaching the
bridge. One of the photographs depicts a horizontal linear area of asphalt that has
some uneven edges and minor cracking. None of the photographs show a large rut or a
sizeable roadway defect as described by plaintiff in his complaint.
       {¶ 5} 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.
Plaintiff did not file a response.
       {¶ 6} 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. 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.
      {¶ 7} 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.
      {¶ 8} 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 conditions or defects 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 or defect on US Route 30 prior to the morning of December 1, 2010.
      {¶ 9} Therefore, to find liability, plaintiff must prove that ODOT had constructive
notice of the defect.   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 defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458.
      {¶ 10} In order for there to be constructive notice, plaintiff must show 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 . 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. “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. No evidence has shown that ODOT had constructive notice of the pothole or rut.
      {¶ 11} 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 potholes 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 produced any evidence to infer that defendant, in
a general sense, maintains its highways negligently or that defendant’s acts caused the
defective conditions. Herlihy v. Ohio Department of Transportation (1999), 99-07011-
AD. Therefore, defendant is not liable for any damage plaintiff may have suffered from
the roadway defect.
       {¶ 12} 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




MATT BARNHART

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-12401-AD

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:

Matt Barnhart                                     Jerry Wray, Director
4747 Swaney Road                                  Department of Transportation
Lima, Ohio 45801                                  1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
4/7
Filed 4/27/11
Sent to S.C. reporter 8/10/11
