[Cite as Henderson v. Ohio Dept. of Transp., 2010-Ohio-5459.]

                                      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




EMILY L. HENDERSON

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-04122-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Emily L. Henderson, filed this action against defendant,
Department of Transportation (ODOT), contending that her 2008 Dodge Avenger was
damaged as a proximate cause of negligence on the part of ODOT personnel in failing
to maintain Colerain Avenue (US Route 27) in Hamilton County free of defects. In her
complaint, plaintiff pointed out that the tire and rim on her vehicle were damaged when
the minivan struck “a gigantic pothole, between Loretta Lane and Byrneside Drive” on
US Route 27 North in Hamilton County. Plaintiff recalled that the damage incident
occurred on February 13, 2010, at approximately 7:00 p.m. Plaintiff seeks damage
recovery in the amount of $1,141.48. The filing fee was paid.
        {¶ 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 February 13, 2010 described occurrence.             Defendant located the pothole
“between mileposts 10.24 and 10.28 on US 27 in Hamilton County” and advised that
“ODOT did not receive any reports of the pothole or have any knowledge of the pothole
prior to the (February 13, 2010) incident.” Defendant asserted that plaintiff failed to
produce any evidence to establish the length of time the pothole existed on US Route
27 prior to her damage occurrence. Defendant suggested that “it is likely the pothole
existed for only a short time before the incident.”
       {¶ 3} Furthermore, defendant argued that plaintiff failed to prove the roadway
was negligently maintained.     Defendant explained that the ODOT “Hamilton County
Manager inspects all state roadways within the county at least two times a month.”
Apparently no potholes were detected between mileposts 10.24 and 10.28 on US Route
27 the last time that section of roadway was inspected before February 13, 2010. The
claim file is devoid of any roadway inspection records.          Defendant did submit
“Maintenance Records” for US Route 27 covering the period from August 13, 2010 to
February 13, 2010. These records show that no pothole patching repairs were needed
in the vicinity of mileposts 10.24 and 10.28 during the six-month period preceding
plaintiff’s damage event.
       {¶ 4} Plaintiff filed a response insisting defendant should bear liability for her
February 13, 2010 property damage incident. Plaintiff did not offer any evidence to
show the length of time that the particular pothole existed on the roadway prior to 7:00
p.m. on February 13, 2010.
       {¶ 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 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.
      {¶ 8} “[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 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.
      {¶ 9} 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 length of 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




EMILY L. HENDERSON

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-04122-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:

Emily L. Henderson              Jolene M. Molitoris, Director
7864 Riley Road                 Department of Transportation
Alexandra, Kentucky 41001       1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
6/11
Filed 7/20/10
Sent to S.C. reporter 11/5/10
