[Cite as Rader v. Ohio Dept. of Transp., 2010-Ohio-6628.]

                                      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




JAMES RADER

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant
       Case No. 2010-07024-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On May 1, 2010, at approximately 4:30 p.m., plaintiff, James Rader, was
traveling north on State Route 177 in Butler County, when his vehicle struck a pothole
causing rim damage. Plaintiff has contended the wheel damage to his vehicle was
proximately caused by negligence on the part of defendant, Department of
Transportation (ODOT), in failing to maintain the roadway free of defects such as
potholes.     Plaintiff filed this complaint seeking to recover $177.50, the total cost a
replacement rim. 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 its “investigation indicates that the
location of plaintiff’s incident was approximately at milepost 9.26 on SR 177 in Butler
County.” Defendant denied receiving any calls or complaints regarding a pothole at
milepost 9.26 on State Route 177 prior to plaintiff’s May 1, 2010 property damage
event. Defendant suggested, “it is likely the pothole existed for only a short time before
the incident.” Furthermore, defendant asserted plaintiff did not produce any evidence to
prove his property damage was caused by negligent maintenance.                      Defendant
explained the ODOT “Butler County Manager inspects all state roadways within the
county at least two times a month.” Apparently no potholes were discovered at milepost
9.26 on State Route 177 the last time that section of roadway was inspected prior to
May 1, 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. 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, “[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. This court, as trier of
fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14
Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477.
      {¶ 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.   Therefore, for the court to find liability on    a notice theory, evidence of
constructive notice of the pothole must be present.
       {¶ 6} “[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.
       {¶ 7} 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.
       {¶ 8} Ordinarily in a claim involving roadway defects, plaintiff must prove either:
1) defendant had actual or constructive notice of the defective condition 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 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




JAMES RADER

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

Case No. 2010-07024-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:

James Rader                                       Jolene M. Molitoris, Director
4347 Terrace Road                                 Department of Transportation
College Corner, Ohio 45003                        1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
9/30
Filed 10/13/10
Sent to S.C. reporter 1/21/11
