[Cite as Smith v. Ohio Dept. of Transp., 2011-Ohio-6587.]



                                       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
BRIDGETTE C. SMITH

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2011-05769-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Bridgette Smith, filed this action against defendant, Department of
Transportation (ODOT), contending she suffered property damage as a proximate result
of negligence on the part of ODOT in maintaining a hazardous condition on Interstate
71 northbound. Plaintiff related she was traveling on Interstate 71 when she “hit a
pothole so hard it jarred the windshield wiper blades into the on position.” Plaintiff
recalled the described incident occurred on March 18, 2011 at approximately 2:00 p.m.
Plaintiff requested damage recovery in the amount of $598.41, the stated total cost of
replacement parts, related repair expenses, and reimbursement of the filing fee. The
filing fee was paid.
        {¶2}     Defendant determined plaintiff’s incident occurred “at county milepost 3.01
or state milepost 198 on I-71 in Wayne 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 18, 2011 incident. Defendant related that “[t]his
section of roadway has an average daily traffic count” of over 30,000 vehicles.
Defendant asserted plaintiff did not offer any evidence to establish the length of time
that any pothole existed at milepost 198 on I-71 prior to her 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 “Wayne 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 18, 2011. Defendant argued that plaintiff has
failed to offer any evidence to prove her property damage was attributable to any
conduct on the part of ODOT personnel. Defendant asserted that the roadway was “in
good condition at the time and in the general vicinity of Plaintiff’s incident.” Defendant
stated that, “[a] review of the six-month maintenance history [record submitted] for the
area in question reveals that four (4) pothole patching operations were conducted in the
general vicinity of plaintiff’s incident.” Defendant noted, “that if ODOT personnel had
detected any further defects they would have been reported and 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. 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.
       {¶5}   Defendant had 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}    Plaintiff filed a response stating that the pothole she struck was located
“on the seam of the lanes” and that as of July 2, 2011, the area has not been repaired.
       {¶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.
       {¶8}    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. Plaintiff has not submitted any evidence to establish ODOT had
actual notice of the pothole condition prior to plaintiff’s incident. Therefore, in order to
recover plaintiff must produce evidence to prove constructive notice of the defect or
negligent maintenance.
       {¶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, 47 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. 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 developed. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d
262, 577 N.E. 2d 458.
       {¶10} In order for there to be constructive notice, plaintiff must show 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. “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 ODOT
had constructive notice of the pothole.
       {¶11} 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 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.
       {¶12} 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

BRIDGETTE C. SMITH

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

        Case No. 2011-05769-AD

Acting 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
                                                 Acting Clerk

Entry cc:

Bridgette C. Smith                               Jerry R. Wray, Director
5774 Albany Trace                                Department of Transportation
Westerville, Ohio 43081                          1980 West Broad Street
                                                 Columbus, Ohio 43223


7/20
Filed 8/1/11
Sent to S.C. reporter 12/20/11
