[Cite as Hamel v. Ohio Dept. of Transp., Dist. 11, 2011-Ohio-6944.]



                                       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




JAMES R. HAMEL

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 11

        Defendant

Case No. 2011-07869-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT
        {¶1}     On May 5, 2011, at approximately 3:30 p.m., plaintiff, James Hamel, was
traveling north on State Route 241 when he struck a pothole causing damage to the
right front tire on his 2011 Buick LaCrosse. Plaintiff relates that he called a towing
service and that their employee, Jeremy, stated that plaintiff’s “call for service was the
third one that he personally serviced that same day for damages caused by this same
hole. He also stated that he was aware of a number of calls made previously to report
this road hazard.”
        {¶2}     Plaintiff contends his property damage was proximately caused by
negligence on the part of defendant, Department of Transportation (“DOT”), in failing to
maintain the roadway. Consequently, plaintiff filed this complaint seeking to recover
$295.64, the cost of a replacement tire and associated repair expenses. The filing fee
was paid.
        {¶3}     Defendant denies liability in this matter based on the contention that no
DOT personnel had any knowledge of the pothole prior to plaintiff’s property-damage
event. Defendant notes that plaintiff’s incident occurred “at milepost 10.30 on SR 241 in
Holmes County.”     Defendant denies receiving any previous reports of the damage-
causing pothole which plaintiff encountered. Defendant suggests, “it is likely the pothole
existed for only a short time before the incident.”
       {¶4}    Furthermore, defendant asserts plaintiff has not produced evidence to
show DOT negligently maintained the roadway.          Defendant explains that the DOT
Holmes County Manager “inspects all state roadways at least two times a month.”
Apparently no potholes were discovered at milepost 10.30 on SR 241 in the vicinity of
plaintiff’s incident the last time this roadway was inspected prior to May 5, 2011.
Defendant’s records show one pothole patching operation was conducted on SR 241
near milepost 10.30 on February 4, 2011.
       {¶5}    Plaintiff filed a response essentially reiterating the allegations in his
complaint.
                                  CONCLUSIONS OF LAW
       {¶6}    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.
       {¶7}    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.
       {¶8}    To prove a breach of duty by defendant to maintain the highways plaintiff
must establish, by a preponderance of the evidence, that DOT 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. No evidence has shown that defendant had actual notice of the
damage-causing pothole.
       {¶9}   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 (pothole) developed. Spires v. Ohio Highway Department (1988), 61
Ohio Misc. 2d 262, 577 N.E. 2d 458. 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. There is no evidence defendant had constructive notice
of the pothole.
       {¶10} 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 plaintiff may have suffered from the
pothole.
       {¶11} Plaintiff has not shown, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to him or that his property damage was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing pothole was connected to any conduct under the control of defendant or that
there was any 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.
                                 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




JAMES R. HAMEL

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 11

        Defendant

Case No. 2011-07869-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:

James R. Hamel                                    Jerry Wray, Director
323 Pebble Beach Drive                            Department of Transportation
Perry, Georgia 31069-4523                         1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
8/24
Filed 8/26/11
Sent to S.C. reporter 1/19/12
