[Cite as Merritts v. Ohio Dept. of Transp., 2009-Ohio-7152.]

                                       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




ARLETTA MERRITTS

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

        Case No. 2009-07202-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       On June 25, 2009, at approximately 10:00 a.m., plaintiff, Arletta
Merritts, was traveling west on State Route 126 “before reaching the Mt. Healthy exit”
when her 2008 Cadillac DTS struck “a huge pothole” causing tire damage to the vehicle.
        {¶ 2} 2)       Plaintiff asserted that the 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 defects such as potholes. Plaintiff filed this complaint
seeking to recover $261.38, the cost of a replacement tire. The filing fee was paid.
        {¶ 3} 3)       Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular pothole prior to plaintiff’s property
damage occurrence. Defendant advised that ODOT’s “investigation indicates that the
location of plaintiff’s incident is between mileposts 9.38 and 9.04 on SR 126 in Hamilton
County.” Defendant related that there is no record of ODOT receiving any complaint
regarding a pothole between mileposts 9.38 and 9.04 on State Route 126. Defendant
asserted that plaintiff did not produce any evidence to establish the length of time that
the particular damage-causing pothole existed prior to June 25, 2009.            Defendant
suggested that “it is likely the pothole existed for only a short time before the incident.”
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
discovered between milepost 9.38 and 9.04 on State Route 126 the last time that
section of roadway was inspected prior to June 25, 2009. Defendant argued that ODOT
conducted proper maintenance of the roadway.
       {¶ 4} 4)    Plaintiff filed a response noting that “[t]he pothole was too large to
have just happened, [i]t (had) to have been there for awhile.” Plaintiff surmised that the
particular pothole would have certainly been discovered by routine inspection and
suggested that ODOT’s Hamilton County Manager did not inspect the roadway properly
or was not thorough enough in conducting inspection activities.
                                CONCLUSIONS OF LAW
       {¶ 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, 788 N.E. 2d 1088, ¶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 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.
       {¶ 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} To prove a breach of the duty by defendant to maintain the highways,
plaintiff must establish, by a preponderance of the evidence, that ODOT 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.
      {¶ 8} Generally, in order to recover in any suit involving injury 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. Plaintiff has not produced any evidence to indicate the length of
time that the pothole condition was present on the roadway prior to the incident forming
the basis of this claim. No evidence has been submitted to show that defendant had
actual notice of the pothole. Therefore, to find liability, constructive notice must be
shown.
      {¶ 9} “[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.
      {¶ 10} The trier of fact is precluded from making an inference of defendant’s
constructive notice, unless evidence is presented in respect to the time the defective
condition (pothole) developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458. Size of the particular damage-causing 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 ODOT had constructive notice of the damage-causing pothole.
      {¶ 11} 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.
Plaintiff has not produced evidence to establish that defendant did not properly inspect
the roadway or failed to discover an obvious defect.
      {¶ 12} Plaintiff has not shown, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to her or that her property damage was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing pothole was connected to any conduct under the control of defendant, or that
there was any 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.




                               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




ARLETTA MERRITTS

      Plaintiff
        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

         Case No. 2009-07202-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:

Arletta Merritts                                  Jolene M. Molitoris, Director
7030 Highpoint Blvd.                              Department of Transportation
Liberty Twp., Ohio 45011                          1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
10/15
Filed 11/5/09
Sent to S.C. reporter 2/25/10
