[Cite as Williams v. Ohio Dept. of Transp., 2010-Ohio-4034.]

                                       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




SHAKIM WILLIAMS

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-09752-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       On December 14, 2009, at approximately 5:00 a.m., plaintiff, Shakim
Williams, was traveling south on Interstate 270 in Franklin County, when his 2000
Toyota Camry struck a pothole causing rim and tire damage to the vehicle.
        {¶ 2} 2)       Plaintiff asserted that the damage to his car was proximately caused
by negligence on the part of defendant, Department of Transportation (ODOT), in failing
to maintain the roadway free of hazards such as potholes. Plaintiff filed this complaint
seeking to recover $169.32, the stated cost of replacement tires. Payment of the filing
fee was waived.
        {¶ 3} 3)       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 phone logs show no complaints
were on file regarding the specific damage-causing pothole which ODOT located “at
approximately milepost 43.08 on I-270 in Franklin County.” Defendant asserted that
plaintiff failed to offer any evidence to prove his property damage was attributable to
conduct on the part of ODOT personnel. Defendant suggested, “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 ODOT “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 at milepost 43.08 on Interstate 270 the last time that section of roadway was
inspected before December 2009. Defendant’s maintenance records show that “five (5)
pothole patching operations were conducted in the general vicinity of plaintiff’s incident.”
The maintenance record (copy submitted) indicates that ODOT crews patched potholes
in the area including milepost 43.08 on July 8, 2009, July 9, 2009, July 16, 2009, July
17, 2009, and October 30, 2009. Defendant contended that plaintiff failed to produce
any evidence to establish the length of time the pothole existed prior to 5:00 a.m. on
December 14, 2009. Defendant stated that, “if ODOT personnel had detected any
potholes they would have been reported and promptly scheduled for repair.”
       {¶ 4} 4)    Despite filing a response, plaintiff did not produce evidence to
establish the length of time that the pothole at milepost 43.08 existed prior to 5:00 a.m.
on December 14, 2009. Plaintiff acknowledged that “I, the plaintiff, in no way feel there
was any neglect in the maintaining of the roads by ODOT.” Plaintiff suggested the
pothole his vehicle struck may “have been overlooked” during roadway inspection.
Plaintiff admitted he has no evidence to show the length of time the pothole was on the
roadway prior to his incident.
                                 CONCLUSIONS OF LAW
       {¶ 5} 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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he suffered a loss
and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio
State University (1977), 76-0368-AD. However, “[it] 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.       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. There is no evidence that defendant had actual notice of the
pothole.    Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the pothole must be presented.
       {¶ 7} “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or knowledge.”   In re Estate of
Fahle (1950), 90 Ohio App. 195, 197-198, 48 O.O. 231, 105 N.E. 2d 429. “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.        In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, 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; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
       {¶ 8} 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 pothole
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458. No evidence was presented to establish the time that the
particular pothole was present. 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. Plaintiff has failed to prove that defendant had constructive
notice of the pothole. 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 that plaintiff may have suffered from
the roadway defect.




                               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




SHAKIM WILLIAMS

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2009-09752-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:

Shakim Williams                                   Jolene M. Molitoris, Director
5415 B2 Yorkshire Terrace                         Department of Transportation
Columbus, Ohio 43232                              1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
4/7
Filed 4/28/10
Sent to S.C. reporter 8/26/10
