[Cite as Johnson v. Ohio Dept. of Transp., 2011-Ohio-6981.]



                                                        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



DASHAE JOHNSON                                                Case No. 2011-08334-AD

        Plaintiff                                             Deputy Clerk Daniel R. Borchert

        v.                                                    MEMORANDUM DECISION

OHIO DEPT. OF TRANSPORTATION

       Defendant


        {¶1}    Plaintiff, Dashae Johnson, filed this action against defendant, Ohio
Department of Transportation (ODOT), contending that her car was damaged as a
proximate result of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 70 eastbound. In her complaint, plaintiff stated that she struck a
pothole and as a result of the impact a rim had to be replaced. Plaintiff seeks recovery
of damages in the amount of $160.13, the stated cost for a replacement rim. Payment
of the filing fee was waived.
        {¶2}    Upon investigation, defendant determined plaintiff’s incident occurred on
March 11, 2011, at state milepost 109.96 on I-70 in Franklin County. Defendant denied
liability based on the contention that no ODOT personnel had any knowledge of the
particular damage-causing pothole prior to plaintiff’s March 11, 2011 incident.
Defendant denied receiving any prior calls or complaints about a pothole or potholes in
the vicinity of that location despite the fact that this section of roadway has an average
daily traffic count of over 85,000 vehicles. Defendant asserted that plaintiff did not offer
any evidence to establish the length of time that any pothole existed in the vicinity of her
incident on I-70 prior to March 11, 2011. 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 “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 in the vicinity of plaintiff’s incident the last time that section of
roadway was inspected prior to March 11, 2011. Defendant argued that plaintiff has
failed to offer any evidence to prove that her property damage was attributable to any
conduct on the part of ODOT personnel. Defendant stated that, “[a] review of the six-
month maintenance history [record submitted] reveals that one (1) pothole patching
operation was conducted in the general vicinity of plaintiff’s incident.”
       {¶4}    Plaintiff did not file a response.
       {¶5}    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. 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.
       {¶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 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 that defendant had actual notice of the
pothole on I-70 prior to March 11, 2011.
       {¶8}   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.
       {¶9}   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. Plaintiff has provided insufficient evidence to prove that ODOT had constructive
notice of the pothole.
       {¶10} 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 potholes 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.      Plaintiff has not produced sufficient evidence to infer that
defendant, in a general sense, maintains its highways negligently or that defendant’s
acts caused the defective conditions. 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} 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 her 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

DASHAE JOHNSON

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

Case No. 2011-08334-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:

Dashae Johnson                                    Jerry Wray, Director
6401 Blackhaw Drive                               Department of Transportation
Reynoldsburg, Ohio 43068                          1980 West Broad Street
                                                  Columbus, Ohio 43223

9/23
Filed 9/29/11
Sent to S.C. reporter 2/6/12
