[Cite as Thompson v. Ohio Dept. of Transp., 2010-Ohio-4788.]

                                     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




LABARTHA THOMPSON

         Plaintiff

         v.

OHIO DEPARTMENT OF TRANSPORTATION

         Defendant

         Case No. 2010-01697-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



         {¶ 1} On January 6, 2010, plaintiff, Labartha Thompson, was traveling west on
Interstate 90 in Lake County, when her 1997 Toyota Avalon struck a large pothole
causing tire and wheel damage to the vehicle. Plaintiff asserted the property damage to
her car was proximately caused by negligence on the part of defendant, Department of
Transportation (ODOT), in failing to maintain the roadway free of hazardous conditions
such as potholes.        Plaintiff filed this complaint seeking to recover damages in the
amount of $335.11, the total cost of replacement parts for her vehicle. The $25.00 filing
fee was paid and plaintiff requested reimbursement of that cost along with her damage
claim.
         {¶ 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 January 6, 2010 described occurrence. From plaintiff’s description, defendant
located the pothole between “state mileposts 203.52 and 191.38 on I-90 in Lake
County.” Defendant acknowledged receiving a complaint on August 17, 2009 “about
poor pavement on I-90” within the vicinity of plaintiff’s January 6, 2010 incident.
However, according to defendant, the problem with pavement conditions on Interstate
90 reported on August 17, 2009 was remedied that same day. Defendant advised that
no other complaints were received regarding potholes between mileposts 203.52 and
191.38 on Interstate 90 prior to plaintiff’s incident despite the fact the “section of
roadway has an average daily traffic count between 35,110 to 74,980 vehicles.”
Defendant argued plaintiff did not produce evidence to establish the length of time the
damage-causing pothole between mileposts 203.52 and 191.38 existed prior to her
January 6, 2010 incident.     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.”
       {¶ 3} Additionally, defendant contended that plaintiff did not offer evidence to
prove the roadway was negligently maintained. Defendant advised the ODOT “Lake
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 between mileposts 203.52 and 191.38 on Interstate 90 the last time that
section of roadway was inspected prior to January 6, 2010.            Defendant stated “[a]
review of the six-month maintenance history (record submitted) for the area in question
reveals that two (2) pothole patching operations were conducted in the vicinity of
plaintiff’s incident.” The record shows these patching operations were conducted on
October 15, 2009 and October 19, 2009. Defendant noted, “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. 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.
      {¶ 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 defendant had actual notice of the pothole
on Interstate 90 prior to the morning of January 6, 2010.
      {¶ 7} 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.
      {¶ 8} 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 by simply applying a pre-set time
standards for the discovery of certain road hazards.” Bussard, 31 Ohio Misc. 3d 1, 31
OBR 64, 507 N.E. 2d 1179.        “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. No evidence has shown that
ODOT had constructive notice of the pothole.
      {¶ 9} 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 pothole 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. The fact that defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident on two occasions months before
that incident does not prove negligent maintenance of the roadway on the part of
ODOT. 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 plaintiff may have suffered from the
pothole.
       {¶ 10} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained a known hazardous roadway condition. Plaintiff failed
to prove 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




LABARTHA THOMPSON
        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-01697-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:

Labartha Thompson                                 Jolene M. Molitoris, Director
574 Deerwood Court                                Department of Transportation
Painesville, Ohio 44077                           1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
5/20
Filed 6/4/10
Sent to S.C. reporter 10/1/10
