[Cite as Hauss v. Ohio Dept. of Transp., 2010-Ohio-6683.]

                                      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




ANDREW K. HAUSS

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-05382-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


                                         FINDINGS OF FACT
        {¶ 1} Plaintiff, Andrew K. Hauss, filed this action against defendant, Department
of Transportation (ODOT), contending his 2008 Mazda 6 was damaged as a proximate
cause of negligence on the part of ODOT in maintaining a hazardous condition on
Interstate 71 North in Franklin County. Specifically, plaintiff related the tires and rims on
his car were damaged as a result of striking a huge pothole “[r]ight around the sign for
315 Worthington” on Interstate 71. Plaintiff recalled the damage incident occurred on
January 24, 2010 at approximately 6:35 p.m.                 In his complaint, plaintiff requested
damages in the amount of $450.09 for the costs of replacement parts and rental car
expenses, plus $60.00 for work loss related to the incident. The $25.00 filing fee was
paid and plaintiff requested reimbursement of that cost along with his damage claim.
Defendant did not contest liability in this matter. Defendant disputed plaintiff’s damage
claim for work loss.
                                      CONCLUSIONS OF LAW
        {¶ 2} 1)       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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he 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.
      {¶ 3} 2)     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.
      {¶ 4} 3)     In order to recover in any suit involving injury 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 proven his property damage was proximately caused by negligence on the
part of ODOT in failing to timely correct a hazardous roadway condition. Fite v. Dept. of
Transp., Ct. of Cl. No. 2009-05757-AD, jud. aff. (12-18-09), 2009-Ohio-7124.
      {¶ 5} 4)     As trier of fact, this court has the power to award reasonable
damages based on evidence presented. Sims v. Southern Ohio Correctional Facility
(1988), 61 Ohio Misc. 2d 239, 577 N.E. 2d 160.
      {¶ 6} 5)     Damage assessment is a matter within the function of the trier of fact.
Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462.
Reasonable certainty as to the amount of damages is required, which is that degree of
certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement
Sys. Of Ohio (1995), 102 Ohio App. 3d 782, 658 N.E. 2d 31.
       {¶ 7} 6)    Plaintiff has suffered damages in the amount of $510.09, the total
cost of replacing two tires, two rims, car rental expense, and work loss. Therefore,
defendant is liable to plaintiff in the amount of $510.09, plus the $25.00 filing fee, which
may be awarded as costs pursuant to R.C. 2335.19. See Bailey v. Ohio Department of
Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.




                                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




ANDREW K. HAUSS

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

       Case No. 2010-05382-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 plaintiff in the amount of $535.09, which includes the filing fee. Court costs are
assessed against defendant.




                                           DANIEL R. BORCHERT
                                           Deputy Clerk

Entry cc:

Andrew K. Hauss                            Jolene M. Molitoris, Director
400 E. 15th Avenue                         Department of Transportation
Apt. A-1                                   1980 West Broad Street
Columbus, Ohio 43201                       Columbus, Ohio 43223

RDK/laa
10/27
Filed 12/29/10
Sent to S.C. reporter 2/25/11
