[Cite as Farber v. Ohio Dept. of Transp., 2010-Ohio-3638.]



                                      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




SUSAN FARBER

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

       Defendant

        Case No. 2009-09329-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Susan Farber, filed this action against defendant, Department of
Transportation (ODOT), contending her 2007 Saturn Ion was damaged as a proximate
cause of negligence on the part of ODOT personnel in failing to maintain Montgomery
Road (US 22) in Hamilton County free of defects. In her complaint, plaintiff pointed out
the right front tire and rim on her car were damaged when the vehicle struck “a very
deep pothole of substantial size” as she “passed the flashing traffic light where Miami
Avenue intersects Montgomery Road.”                   Plaintiff subsequently located the damage-
causing pothole “along the southbound side of Montgomery Road (US 22) between the
intersections of Miami Avenue and Dearwester Drive” adjacent to “the Seasons
Retirement Community, 7100 or 7300 Dearwester Drive.”                        Additionally, plaintiff
submitted a document noting the location of the pothole “on southbound Montgomery
Road between the intersections of Montgomery Road with Miami Avenue and with
Kugler Mill Road.” Plaintiff recalled the damage incident occurred “on November 20,
2009 in the evening (after dark).” Plaintiff further recalled the damage-causing pothole
was patched on November 25, 2009. Plaintiff seeks damage recovery in the amount of
$678.94. 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 November 20, 2009 described occurrence. Defendant located the pothole “at
milepost 12.53 on US 22 in Hamilton County.” Defendant explained ODOT records
show no reports of a pothole on US Route 22 prior to November 20, 2009. Defendant
argued plaintiff did not provide any evidence to establish the length of time the particular
pothole was present on the roadway prior to November 20, 2009. Defendant suggested
“it is likely the pothole existed for only a short time before the incident.”
       {¶ 3} Furthermore, defendant contended plaintiff did not offer any evidence to
prove the roadway was negligently maintained. Defendant related the ODOT “Hamilton
County Manager inspects all state roadways within the county at least two times a
month.” Apparently, no potholes were discovered in the vicinity of milepost 12.53 on US
22 the last time that section of roadway was inspected prior to November 20, 2009.
Defendant’s maintenance records show potholes were patched in the vicinity of
plaintiff’s incident on September 9, 2009.
       {¶ 4} Plaintiff filed a response asserting defendant should have known of the
presence of the pothole due to the fact that ODOT Hamilton County Manager conducts
routine patrols of the state roadways within the county at least two times a month.
Defendant denied having any knowledge of the pothole pursuant to inspecting the
roadway. Plaintiff argued defendant did not properly inspect the roadway for potholes.
Plaintiff reasoned defendant had notice of the pothole in the southbound lane of US 22
because the northbound lane of US 22 had been recently repaired “during late 2008 or
early 2009.”    Plaintiff maintained the damage-causing pothole was present on the
roadway due to the massive size of this defect. Plaintiff observed “[a] pothole of this
size (16 inches wide and 36 inches long) . . . could not have been created” over a short
period of time. Consequently, plaintiff argued defendant should have known of the
existence of the pothole and failed to timely respond to correct the condition. However,
plaintiff acknowledged “[i]t is true that the Plaintiff does not offer evidence as to the
duration of the pothole, as the Plaintiff would have no knowledge of said duration.”
Plaintiff also admitted she cannot produce any evidence “to confirm or deny”
defendant’s contention that no ODOT personnel had any knowledge of the particular
pothole prior to November 20, 2009.
      {¶ 5} Furthermore, plaintiff contended defendant was negligent in regard to
roadway maintenance by not resurfacing the southbound lanes of US 22.           Plaintiff
expressed the opinion that “the southbound lanes also required repaving along this
segment of US 22 where the pothole caused damage to the Plaintiff’s car (from mile
marker 12.0-12.8).” Plaintiff asserted that since the northbound lanes of US 22 had
been resurfaced that fact should constitute evidence of the need for resurfacing the
southbound lanes where her incident occurred.
      {¶ 6} Plaintiff supplied photographs depicting the roadway surface after
patching repairs had been made to the pothole her vehicle struck. The photographs
show a roadway area where substantial pavement deterioration had occurred. The
actual patch appeared to be intact from a review of the photographs submitted. Plaintiff
also submitted photographs depicting the general roadway area where her damage
incident occurred.   The roadway shows some deterioration along the painted white
roadway edge line.
      {¶ 7} Plaintiff submitted an affidavit from James M. Farber, who was a
passenger in plaintiff’s car at the time of the property damage event. James M. Farber
recalled the November 20, 2009 incident, and confirmed observing damage to plaintiff’s
car. James M. Farber did not provide any evidence to establish the length of time the
pothole was on US 22 before November 20, 2009.
      {¶ 8} Defendant filed a supplemental document. Defendant insisted ODOT did
not receive any notice of the damage-causing pothole on US 22 until after plaintiff’s
November 20, 2009 damage occurrence.
      {¶ 9} 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.
      {¶ 10} 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.
      {¶ 11} 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 US Route 22 prior to the night of November 20, 2009.
      {¶ 12} Therefore, to find liability plaintiff must prove 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 the
defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458.
      {¶ 13} 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. “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, 31 Ohio Misc. 2d 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 ODOT
had constructive notice of the pothole.
      {¶ 14} 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 potholes 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 defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident on September 8, 2009 does not
prove negligent maintenance of the roadway on the part of ODOT. Additionally, the fact
some areas of US Route 22 were repaved and the area where plaintiff’s incident
occurred was not subject to resurfacing does not constitute negligent maintenance.
Plaintiff has not produced sufficient evidence to infer 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 failed to introduce sufficient evidence to prove defendant maintained a known
hazardous roadway condition. Plaintiff has failed to prove that her property damage
was connected to any conduct under the control of defendant, defendant was negligent
in maintaining the roadway area, 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
SUSAN FARBER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

        Defendant

         Case No. 2009-09329-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:

Susan Farber                                      Jolene M. Molitoris, Director
10729 Lanyard Drive                               Department of Transportation
Montgomery, Ohio 45242-4220                       1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
3/2
Filed 3/25/10
Sent to S.C. reporter 8/6/10
