[Cite as Springer v. Ohio Dept. of Transp., Dist. 1, 2011-Ohio-2128.]

                                       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




GLEN SPRINGER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 1

        Defendant

Case No. 2010-08497-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Glen Springer, filed this action against defendant, Department of
Transportation (ODOT), contending his 2006 Harley Davidson XL883R motorcycle was
substantially damaged as a proximate cause of negligence on the part of ODOT in
maintaining a hazardous condition on an overpass bridge spanning Interstate 75 in
Hancock County. Specifically, plaintiff explained his motorcycle was damaged when the
vehicle “hit a pothole on the deck of (County Road 95 West) I-75 overpass.” In his
complaint, plaintiff advised his described damage incident occurred on May 19, 2010 at
approximately 8:40 p.m. Evidence has shown the incident occurred on May 18, 2010.
Plaintiff requested damages in the amount of $2,200.00. Plaintiff did not submit any
documentation to support his damage claim.                      The filing fee was paid.        Defendant
submitted documentation, an e-mail from plaintiff showing he reported the pothole to
ODOT on June 11, 2010. In the body of this e-mail, plaintiff noted the pothole was first
reported the day after his incident and the defect was patched by ODOT personnel that
same day. Also in this e-mail, plaintiff advised the cost of replacement parts for his
damaged motorcycle would total $2,496.00. Defendant submitted a copy of a repair
order for plaintiff’s motorcycle dated August 11, 2010 showing a total repair cost of
$2,015.50.
       {¶ 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 May 19, 2010 described occurrence. Defendant located the particular pothole
“at county milepost 18.59 or state milepost 160.11 (on CR 95 over I-75) in Hancock
County.” Defendant noted that ODOT records show no reports of a pothole at the
location indicated prior to plaintiff’s damage event despite the fact “[t]his section of
roadway had an average daily traffic count between 33,000 to 50,530 vehicles.”
Defendant suggested that “it is more likely than not that the pothole existed in that
location for only a relatively short amount of time before plaintiff’s incident.” Defendant
contended that plaintiff failed to produce any evidence to establish the length of time the
pothole at milepost 18.59 on County Road 95 over Interstate 75 existed prior to his May
18, 2010 damage occurrence.
       {¶ 3} Furthermore, defendant contended that plaintiff failed to offer evidence to
prove that ODOT negligently maintained the roadway. Defendant asserted that plaintiff
has not shown his property damage was attributable to conduct on the part of ODOT
personnel. Defendant explained that the ODOT “Hancock 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 at county
mileposts 18.59 on County Road 95 over Interstate 75 the last time that particular
section of roadway was inspected prior to May 18, 2010. The claim file is devoid of any
inspection record.   Defendant asserted that ODOT “did not receive any complaints or
otherwise have notice of the subject condition prior to” the time in question. Defendant
argued that plaintiff failed to prove his property damage was attributable to any conduct
on the part of ODOT personnel. Defendant stated that, “[a] review of the six-month
maintenance history (record submitted) for the area in question reveals that eight (8)
pothole patching operations were conducted in the general vicinity of plaintiff’s incident.”
The last time pothole patching operations were conducted before May 18, 2010 was
that same day. Defendant noted, “that if ODOT personnel had detected any defects
they would have been promptly scheduled for repair.”
       {¶ 4} 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.
      {¶ 5} 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.
      {¶ 6} 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
pothole.    Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the pothole must be presented.
      {¶ 7} “[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.
       {¶ 8} 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 pothole
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 pothole was present. Size of the 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 that defendant had constructive
notice of the pothole.
       {¶ 9} 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 that defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident on various occasions, including
the date of plaintiff’s incident, does not prove negligent maintenance of the roadway on
the part of ODOT. 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 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
GLEN SPRINGER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 1

        Defendant

Case No. 2010-08497-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:

Glen Springer                                     Jerry Wray, Director
1628 Bayhole Drive                                Department of Transportation
Findlay, Ohio 45840                               1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
1/26
Filed 2/16/11
Sent to S.C. reporter 4/29/11
