[Cite as Thompson v. Ohio Dept. of Transp., 2011-Ohio-4792.]



                                      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




NICOLE THOMPSON

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-02557-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, Nicole Thompson, filed this action against defendant, Department
of Transportation (ODOT), contending that she suffered property damage as a
proximate result of negligence on the part of ODOT in maintaining a hazardous
condition on       Interstate 71 southbound.           Specifically, plaintiff related that her car
sustained tire and rim damage when the vehicle “hit a large pothole on Interstate 71,
southbound, 1.2 miles north off the Smith/Edwards exit. The pothole was located on the
dashed line between the right most lane and the lane to its left. My tire blew out upon
impact causing me to lose control and veer onto the right shoulder.” Plaintiff recalled
that her described damage incident occurred on February 4, 2011 at approximately 8:00
a.m. In her complaint, plaintiff requested damage recovery of $349.77, the total cost of
automotive repair and related expenses. The filing fee was paid.
        {¶2}    Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the particular damage-causing condition prior to
plaintiff’s February 4, 2011 described occurrence.              Defendant located the particular
pothole at milepost 7.95 on I-71 in Hamilton County and advised that “ODOT had no
complaints of potholes on I-71 near milepost 7.95 before plaintiff’s incident.”
                Defendant denied receiving any other complaints regarding roadway
defects at the particular location despite the fact that this section of Interstate 71 has an
average daily traffic count of over 120,000 vehicles.
        {¶3}    Defendant denied ODOT negligently maintained Interstate 71 in Hamilton
County. Defendant noted that the ODOT “Hamilton 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 defects were discovered at the location of plaintiff’s
incident on I-71 the last time that section of roadway was inspected prior to February 4,
2011.       The claim file is devoid of any copy of ODOT Hamilton County inspection
records.
        {¶4}    Defendant submitted “Maintenance Records” for Interstate 71 covering the
dates from August 4, 2010 to February 4, 2011. According to the information supplied,
pothole patching operations were conducted in the vicinity of plaintiff’s incident on
February 4, 2011.1
        {¶5}    Plaintiff did not file a response. Plaintiff did not produce any evidence to
establish the length of time the particular defective condition on I-71 existed prior to
8:00 a.m. on February 4, 2011.
        {¶6}    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




        1
         Based on the statements made in the complaint, the trier of facts finds that, in all likelihood, this
pothole patching operation occurred as the result of plaintiff having notified defendant of the pothole on
February 4, 2011, at 8:00 a.m.
      {¶7}     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.
      {¶8}     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.
      {¶9}     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
defect.     Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the defect must be presented.
      {¶10} “[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.       “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.
      {¶11} 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 defect
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 condition was present. 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. Plaintiff has failed to prove that defendant had constructive
notice of a dangerous condition. 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 pothole.
                                 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




NICOLE THOMPSON

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-02557-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:

Nicole Thompson                                   Jerry Wray, Director
3732 Drake Avenue                                 Department of Transportation
Cincinnati, Ohio 45209                            1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
6/2
Filed 6/15/11
Sent to S.C. reporter 9/21/11
