[Cite as Ali v. Ohio Dept. of Transp., 2011-Ohio-1762.]

                                       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




PHILLIP G. ALI

        Plaintiff

        v.

THE OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-09710-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Phillip G. Ali, filed this action against defendant, Department of
Transportation (ODOT), contending his 2004 Audi Quattro was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 71 South in Franklin County. In his complaint, plaintiff described
his damage incident noting he was traveling south on Interstate 71 “crossing under the
Harrisburg Georgesville Rd overpass, when I struck a very large pothole “causing tire,
wheel, axle, and wheel bearing damage to his vehicle. Plaintiff recalled the described
incident occurred on May 22, 2010 at approximately 11:00 p.m. Plaintiff requested
damage recovery in the amount of $1,429.65, the total cost of automotive repair he
incurred. Plaintiff submitted documentation showing his automobile was repaired on
June 21, 2010 and July 13, 2010. The filing fee was paid.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular pothole on the roadway prior to plaintiff’s
property damage occurrence.               Defendant advised that the pothole plaintiff’s vehicle
struck was located “at county milepost 1.44 or state milepost 92.50 on I-71 in Franklin
County.” Defendant denied receiving any calls or complaints regarding a pothole at that
location on Interstate 71 prior to plaintiff’s May 22, 2010 property damage event.
Defendant suggested that, “it is likely the pothole existed for only a short time before the
incident.” Furthermore, defendant asserted that plaintiff did not produce any evidence
to prove his property damage was caused by negligent maintenance.                Defendant
explained the ODOT “Franklin County Manager inspects all state roadways within the
county at least two times a month.”        Apparently, no potholes were discovered at
milepost 92.50 on Interstate I71 the last time that section of roadway was inspected
prior to May 22, 2010. The claim file is devoid of any inspection record. Defendant’s
submitted “Maintenance History” shows ODOT crews patched potholes in the vicinity of
plaintiff’s incident on April 1, 2010, April 30, 2010, May 12, 2010, and May 13, 2010.
       {¶ 3} 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.
       {¶ 4} 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.
       {¶ 5} 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. There is no evidence that defendant had actual notice of the
pothole on Interstate 71 prior to the night of May 22, 2010.
      {¶ 6} 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.
      {¶ 7} 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.
      {¶ 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. The fact that defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident on various occasions 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.
       {¶ 9} 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




PHILLIP G. ALI

      Plaintiff

      v.

THE OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

       Case No. 2010-09710-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:

Phillip G. Ali                                  Jolene M. Molitoris, Director
109 Castle Pine Court                           Department of Transportation
Xenia, Ohio 45385                               1980 West Broad Street
                                                Columbus, Ohio 43223
RDK/laa
12/21
Filed 1/21/11
Sent to S.C. reporter 4/8/11
