[Cite as Gaumer v. Ohio Dept. of Transp., 2011-Ohio-5572.]



                                      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




TIM GAUMER,                                                   Acting Clerk Daniel R. Borchert


        Plaintiff,                                            Case No. 2011-04754-AD

        v.

OHIO DEPARTMENT OF TRANSPORTATION,

        Defendant.



                                    MEMORANDUM DECISION


        {¶ 1} Plaintiff, Tim Gaumer, filed this action against defendant, Ohio Department
of Transportation (ODOT), contending that his vehicle was damaged as a proximate
result of negligence on the part of ODOT in maintaining a hazardous condition on State
Route 258. In his complaint, plaintiff described the particular damage event noting that
on March 12, 2011, at approximately 1:00 a.m., he “hit a series of potholes on St. Rt.
258 tearing the sidewall of my front left tire.” Plaintiff seeks recovery of damages in the
amount of $181.21, the stated total amount for a replacement tire. The filing fee was
paid.
        {¶ 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 incident. Defendant related that plaintiff’s incident occurred “at milepost 0.10
on SR 258 in Tuscarawas County.”                 Defendant denied receiving any prior calls or
complaints about a pothole or potholes in the vicinity of that location.                 Defendant
asserted that plaintiff did not offer any evidence to establish the length of time that any
pothole existed in the vicinity of milepost 0.10 on SR 258 prior to plaintiff’s incident.
Defendant suggested that “it is likely the pothole existed for only a short time before the
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 “Tuscarawas County Manager inspects all state roadways within the county at
least 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 12,
2011. The claim file is devoid of any inspection record. Defendant argued that plaintiff
has failed to offer any evidence to prove his property damage was attributable to any
conduct on the part of ODOT personnel.             Defendant’s maintenance records show
potholes were patched in the vicinity of plaintiff’s incident on February 15, 17, and 18,
2011.
        {¶ 4} Plaintiff did not file a response.
        {¶ 5} For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his 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.
        {¶ 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} 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 conditions or defects 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
pothole on SR 258 prior to March 12, 2011.
       {¶ 8} 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.
       {¶ 9} 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 simply by applying a pre-set time
standard for the discovery of certain road hazards.”       Bussard 4.    “Obviously, the
requisite length of time
       {¶ 10} 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.
       {¶ 11} 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 three times in the three weeks
preceding March 12, 2011, does not prove negligent maintenance of the roadway on
the part of ODOT. See Maynard v. Ohio Dept. of Transp., Dist. 10, Ct. of Cl. No. 2004-
03730-AD, 2004-Ohio-3284; Marcis v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-05830-
AD, 2004-Ohio-4830. 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 conditions. 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 his 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




TIM GAUMER,                                             Case No. 2011-04754-AD

        Plaintiff,

        v.                                              Acting Clerk Daniel R. Borchert


OHIO DEPARTMENT OF TRANSPORTATION,

        Defendant.



                     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:

Tim Gaumer                                       Jerry Wray, Director
620 Park Hill Drive                              Department of Transportation
Newcomerstown, Ohio 43832                        1980 West Broad Street
                                                 Columbus, Ohio 43223




7/13
Filed 7/19/11
Sent to S.C. reporter 10/27/11
