[Cite as Chandler v. Ohio Dept. of Transp., 2011-Ohio-7024.]



                                      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




ELIZABETH CHANDLER

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant


Case No. 2011-09471-AD

Deputy Clerk Daniel R. Borchert

                                     MEMORANDUM DECISION

        {¶ 1} Defendant On April 21, 2011, at approximately 2:05 a.m., plaintiff,
Elizabeth Chandler, was traveling on “270 S to Alum Creek” when she hit a pothole and
damaged the tire and rim on her car. Plaintiff related that she “had to get towed, miss a
day of work, and use a taxi to pick up vehicle.”               Plaintiff asserted that the damage to
her car was proximately caused by negligence on the part of defendant, Department of
Transportation (DOT), in failing to adequately maintain the roadway free of defects.
Plaintiff filed this complaint seeking to recover $366.15, the cost of a used tire, new rim,
and reimbursement for lost wages, towing expense and taxi fare. Payment of the filing
fee was waived.
        {¶ 2} Defendant denied liability based on the contention that no DOT personnel
had any knowledge of the particular damage-causing pothole prior to the April 21, 2011
incident. Defendant noted that DOT records show no prior calls or complaints were
received about the pothole, which defendant located “between mileposts 48.0 and 49.0
on I-270 in Franklin County.” Defendant asserted that plaintiff did not produce any
evidence to establish the length of time the pothole she hit existed before April 21, 2011
and 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.” Defendant explained
that the DOT “Franklin 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 between mileposts 48.0 and 49.0 on I-270 the
last time that section of roadway was inspected prior to April 21, 2011. Defendant
stated that, “[a] review of the maintenance history [record submitted] for the area in
question reveals that two (2) pothole patching operations were conducted in April at the
same location as plaintiff’s incident.” (Emphasis added.)
       {¶ 3} Defendant’s maintenance records for I-270 verify that the two repairs in
the same location as plaintiff’s incident were performed on April 12 and April 13, 2011.
       {¶ 4} For plaintiff to prevail on a claim of negligence she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her 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 she 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.
       {¶ 5} 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.
      {¶ 7} 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. Defendant’s “Maintenance History” reflects pothole repairs were
made in the same location as plaintiff’s incident on April 12 and 13, 2011. A pothole
patch that deteriorates in less than ten days is prima facie evidence of negligent
maintenance.   See Matala v. Ohio Department of Transportation, 2003-01270-AD,
2003-Ohio-2618.    According to the investigation report submitted by defendant,
plaintiff’s vehicle was damaged by a pothole located in an area that had been recently
patched and the repairs had failed by April 21, 2011. See 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,
$366.15.
                                 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




ELIZABETH CHANDLER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant


Case No. 2011-09471-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 $366.15. Court costs are assessed against defendant.



                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Elizabeth Chandler                                Jerry Wray, Director
6576 Canby Pl.                                    Department of Transportation
Reynoldsburg, Ohio 43068                          1980 West Broad Street
                                                  Columbus, Ohio 43223

10/7
Filed 10/11/11
Sent to S.C. reporter 3/13/12
