[Cite as Wyne v. Dept. of Transp., 2010-Ohio-5583.]

                                      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




MICHAEL J. WYNE

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-03169-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Michael J. Wyne, filed this action against defendant, Department
of Transportation (ODOT), contending he suffered property damage to his 2008 Ford
Fusion as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on State Route 11 in Trumbull County. Plaintiff related he was
traveling south on State Route 11 “just south of Route 82, approximately at mile marker
51-52” when his vehicle struck a pothole causing tire damage. Plaintiff recalled the
described incident occurred on January 8, 2010 at approximately 6:45 p.m.                       In his
complaint, plaintiff requested damage recovery in the amount of $114.90, the cost of a
replacement tire. The filing fee was paid.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of any roadway defects on State Route 11 prior to
plaintiff’s January 8, 2010 incident.             Defendant related that ODOT’s “investigation
indicates that the location of Plaintiff Wyne’s incident is at milepost 9.5 on SR 11 in
Trumbull County.” Defendant denied receiving any prior calls or complaints about a
pothole in the vicinity of that location. Defendant asserted that plaintiff did not offer any
evidence to establish the length of time any potholes existed in the vicinity of milepost
9.50 on State Route 11 prior to 6:45 p.m. on January 8, 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.”
       {¶ 3} Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Trumbull 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 8, 2010.            The claim file is devoid of any
inspection record. 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 “SR 11 was in good condition at the time and in the
general vicinity of the plaintiff’s incident.” Defendant stated that, “[a] review of the six-
month maintenance history (record submitted) for the area in question reveals that one
(1) pothole patching operation was conducted in the general vicinity and it was the day
of plaintiff’s incident.” No evidence has been produced to show the pothole plaintiff’s
car struck had reformed after being patched. The submitted “Maintenance History”
reflects that ODOT personnel conducted pothole patching on State Route 11 on the day
of January 8, 2010 between mileposts 0.00 to 28.47. Defendant noted, “that if ODOT
personnel had detected any defects they would have been 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. 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 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 defendant had actual notice of the pothole
on State Route 11 prior to the night of January 8, 2010.
      {¶ 7} 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.
      {¶ 8} 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 by simply applying a pre-set time
standard for the discovery of certain road hazards.” Bussard, 31 Ohio Misc. 2d 1, 31
OBR 64, 507 N.E. 2d 1179.        “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.
       {¶ 9} 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. The fact that defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident on the same day does not prove
negligent maintenance of the roadway on the part of ODOT. 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.
       {¶ 10} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained a known hazardous roadway condition. Plaintiff failed
to prove 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




MICHAEL J. WYNE
        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-03169-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:

Michael J. Wyne                                  Jolene M. Molitoris, Director
4596 S. Arlington Road                           Department of Transportation
Uniontown, Ohio 44685                            1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
7/12
Filed 7/28/10
Sent to S.C. reporter 11/15/10
