[Cite as Blakey v. Ohio Dept. of Transp., 2010-Ohio-5580.]

                                       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




YOLONDA BLAKEY

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

        Case No. 2010-02464-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Yolonda Blakey, filed this action against defendant, Department
of Transportation (ODOT), contending that her 2000 Mercury Villager was damaged as
a proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 270 in Franklin County. Plaintiff related that her vehicle was
damaged “due to potholes on I-670 to 270 interchange.” Plaintiff further related that her
vehicle subsequently struck a pothole “off the exit ramp for 5th Ave to 71 North” in
Columbus. Plaintiff claimed that the damage to her minivan caused by striking the
roadway defect(s) necessitated replacing the vehicle’s exhaust, wheel bearing, ball
joints, arm bushing, and engine mounts.                      Plaintiff filed this complaint requesting
damages in the amount of $741.85, the cost of replacement parts and related repair
expenses. Plaintiff submitted a bill for automotive repair bearing the date January 14,
2010.        In her complaint, plaintiff did not provide a date of the damage incident.
Defendant filed an investigation report noting that the damage incident described
occurred on January 5, 2010. The filing fee was paid.
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Case No. 2006-03532-AD                    -2-                MEMORANDUM DECISION



       {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s incident. Defendant explained that telephone contact was made with plaintiff
to ascertain the date and a more specific location of her property damage occurrence.
Defendant advised from information provided by plaintiff the date of the incident was
January 5, 2010 and the location was determined to “be at approximately milepost
32.92 on I-270 in Franklin County.” Defendant noted that ODOT records show no
reports of a pothole at the location indicated prior to plaintiff’s damage event despite the
fact “[t]his section of roadway had an average daily traffic county between 143,620 and
158,770 vehicles.” 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.” Defendant contended that plaintiff failed to produce any evidence to establish
the length of time the pothole at milepost 32.92 on Interstate 270 existed prior to her
January 5, 2010 damage occurrence.
       {¶ 3} Furthermore, defendant contended that plaintiff failed to offer evidence to
prove ODOT negligently maintained the roadway. Defendant asserted that plaintiff has
not shown her property damage was attributable to conduct on the part of ODOT
Case No. 2006-03532-AD                   -3-               MEMORANDUM DECISION



personnel. 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 32.92
on Interstate 270 the last time that particular section of roadway was inspected prior to
January 5, 2010. The claim file is devoid of any inspection record. Defendant did
submit a copy of the “Maintenance History” for Interstate 270 in Franklin County
covering the dates from July 1, 2009 to January 5, 2010. This record shows that ODOT
crews patched potholes in the area including milepost 32.92 on August 19, 2009,
August 20, 2009, October 14, 2009, and November 10, 2009.             No repair activity
occurred in the area after the patching operation performed on November 10, 2009.
Defendant stated, “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, 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
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Case No. 2006-03532-AD                  -4-              MEMORANDUM DECISION



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. 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.
Case No. 2006-03532-AD                   -5-                MEMORANDUM DECISION



      {¶ 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.
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Case No. 2006-03532-AD                  -6-              MEMORANDUM DECISION



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




YOLONDA BLAKEY

      Plaintiff
Case No. 2006-03532-AD                    -7-               MEMORANDUM DECISION



        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

        Case No. 2010-02464-AD

Clerk Miles C. Durfey


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.



                                                 ________________________________
                                                 MILES C. DURFEY
                                                 Clerk

Entry cc:

Yolonda Blakey                                   Jolene M. Molitoris, Director
2877 Bretton Woods Drive                         Department of Transportation
Columbus, Ohio 43231                             1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
6/16
Filed 7/21/10
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Case No. 2006-03532-AD           -8-   MEMORANDUM DECISION



Sent to S.C. reporter 11/15/10
