[Cite as Inboden v. Ohio Dept. of Transp., 2011-Ohio-2130.]

                                      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




NICHOLAS A. INBODEN

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2010-11269-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Nicholas A. Inboden, filed this action against defendant,
Department of Transportation (ODOT), contending that the right front rim on his
Oldsmobile Delta 88 was damaged as a proximate cause of negligence on the part of
ODOT in maintaining a hazardous condition on Interstate 270 in Franklin County. In his
complaint, plaintiff described his damage incident noting that he “was exiting 270 So @
West Broad Street to go east and hit a giant pothole on curve of exit.” The roadway
defect plaintiff described dented the rim on his vehicle. Plaintiff submitted photographs
depicting a dented right front rim on an Oldsmobile Delta 88. Plaintiff recalled that the
particular damage event occurred on August 29, 2010 between 2:30 p.m. and 3:00 p.m.
Plaintiff pointed out that one replacement rim for his car was priced at $400.00. Plaintiff
requested damage recovery in the amount of $1,600.00, the stated cost of four
replacement rims. 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 August 29, 2010 described occurrence.             Defendant located the particular
pothole “at milepost 7.04 on I-270 in Franklin County.” Defendant explained that ODOT
records show no reports of a pothole at the location recorded prior to plaintiff’s damage
event.     Defendant related that ODOT received thirteen complaints of potholes on
Interstate 270 “from July to August 2010 but none of them are in the same location as
plaintiff’s incident.” Defendant advised that no prior reports of a pothole at milepost 7.04
were received despite the fact that “[t]his section of roadway has an average daily traffic
count between 86,430 and 99,360 vehicles.”
         {¶ 3} Defendant argued that plaintiff did not provide any evidence to establish
the length of time the particular pothole at milepost 7.04 was present on the roadway
prior to August 29, 2010. Defendant suggested that, “it is more likely than not the
pothole existed in that location for only a relatively short amount of time before plaintiff’s
incident.” Defendant submitted photographs depicting the roadway area at milepost
7.04 on Interstate 270. Defendant advised these photographs show that “the alleged
pothole is past the white line and is not (on) the traveled portion of the road.” The trier
of fact, after reviewing the submitted photographs, finds that any roadway defects
depicted appear on the roadway berm area not intended for travel and clearly outside
the demarcated traveled portion to be used by motorists.
         {¶ 4} Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Franklin 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 in the vicinity of plaintiff’s incident the last time that section of
roadway was inspected prior to August 29, 2010. Defendant asserted that plaintiff did
not 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 six (6) pothole patching
operations were conducted in the same location as plaintiff’s incident which was the
southbound direction.”     Defendant’s submitted records show ODOT crews patched
potholes in the vicinity of plaintiff’s damage occurrence on March 3, 2010, March 15,
2010 (twice), March 17, 2010, April 9, 2010, and May 15, 2010. Defendant noted, “that
if ODOT personnel had detected any defects they would have been promptly scheduled
for repair.”
      {¶ 5} Plaintiff filed a response. Plaintiff noted that the “pothole was at the end of
the ramp on Broad Street going east.” Plaintiff did not dispute the contention that the
defect his vehicle struck was located on an area not intended for travel. Plaintiff did not
offer any evidence to establish the length of time the particular damage-causing defect
existed prior to 2:30 p.m. on August 29, 2010.
      {¶ 6} 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.
      {¶ 7} 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.
      {¶ 8} Generally, 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. However, this notice standard regarding liability for pothole
damage usually applies under circumstances where the damage is caused by a defect
located on the traveled portion of the roadway.
      {¶ 9} This court has previously held that the Department of Transportation is not
to be held liable for damages sustained by individuals who suffered property damage
from a defective condition located off the portion of roadway intended for travel.
Colagrossi v. Department of Transportation (1983), 82-06474-AD. Generally, a plaintiff
is barred from recovery for property damage caused by a defect or any condition
located off the traveled portion of the roadway. In the instant claim, it appears from the
photographic evidence provided that the pothole plaintiff’s car struck was located on the
roadway berm area. This area is designed to serve a purpose which may include travel
under emergency circumstances. It is for the trier of fact to determine whether driving
on the shoulder is a foreseeable and reasonable use of the berm area of the highway.
Dickerhoof v. City of Canton (1983), 6 Ohio St. 3d 128, 6 OBR 186, 451 N.E. 2d 1193.
If a plaintiff sustains damage because of a defect located off the marked, regularly
traveled portion of a roadway, a necessity for leaving the roadway must be shown.
Lawson v. Department of Transportation (1977), 75-0612-AD. Plaintiff, in the present
action, has failed to produce an adequate reason for driving on a roadway area not
generally intended for travel.      Considering the damage-causing pothole was indeed
located outside the traveled portion of the roadway, plaintiff’s claim is denied. Under
this factual scenario, the evidence tends to show the sole cause of plaintiff’s damage
was his own driving maneuver. See Yokey v. Ohio Dept. of Transp., Ct. of Cl. No.
2004-07425-AD, 2005-Ohio-456; also Lenaghan v. Ohio Dept. of Transp., Ct. of Cl. No.
2007-06071-AD, 2008-Ohio-1206.
          {¶ 10} Considering that plaintiff could prove his car was damaged by a pothole
located on the roadway travel area, in order to recover he would need to establish 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. There is no proof defendant had actual notice of
the pothole on Interstate 270 prior to August 29, 2010.
          {¶ 11} 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.
       {¶ 12} 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, 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. No evidence has shown that ODOT had constructive notice of the pothole.
       {¶ 13} Additionally, there is no evidence of negligent maintenance. The fact that
defendant’s “Maintenance History” reflects pothole repairs were made in the vicinity of
plaintiff’s incident on various occasions 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.
       {¶ 14} 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




NICHOLAS A. INBODEN

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant
        Case No. 2010-11269-AD

Clerk Miles C. Durfey


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.



                                                  ________________________________
                                                  MILES C. DURFEY
                                                  Clerk

Entry cc:

Nicholas A. Inboden                               Jolene M. Molitoris, Director
5243 Taylor Lane                                  Department of Transportation
Hilliard, Ohio 43026                              1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
1/20
Filed 2/8/11
Sent to S.C. reporter 4/29/11
