[Cite as White v. Ohio Dept. of Transp., 2011-Ohio-5311.]



                                       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




KEVIN WHITE

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-02891-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT
        {¶1}     In his complaint, plaintiff, Kevin White, stated that on January 4, 2011, at
approximately 9:00 a.m., he was traveling south bound on I-75 “from Mitchell Ave Exit 6
toward downtown Cincinnati” when he “hit a huge pothole in the extreme left hand lane.”
Plaintiff explained that his car suffered a flat tire and a bent wheel. Plaintiff related that,
“[t]his is my normal Route to and from work and as of February 22, it is still not repaired
while northbound has been repaired. This is the largest pothole I have ever hit/seen
and is located right at mile marker 5.1 southbound.”
        {¶2}     Plaintiff contends his property damage was proximately caused by
negligence on the part of defendant, Department of Transportation (DOT), in failing to
maintain the roadway. Consequently, plaintiff filed this complaint seeking to recover
$485.96, the cost of a replacement tire and associated repair expenses. The filing fee
was paid.
        {¶3}     Defendant denies liability in this matter based on the contention that no
DOT personnel had any knowledge of the pothole prior to plaintiff’s property-damage
event. Defendant states the pothole was located at milepost 5.1 on I-75 in Hamilton
County.     Defendant denies receiving any previous reports of the damage-causing
pothole which plaintiff encountered.
       {¶4}    Furthermore, defendant asserts plaintiff has not produced evidence to
show DOT negligently maintained the roadway.           Defendant explains that the DOT
Hamilton 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 milepost 5.1 on I-75 in the vicinity of plaintiff’s incident the
last time this roadway was inspected prior to January 4, 2011. Defendant stated that,
“[a] review of the six-month maintenance history [record submitted] for the area in
question reveals that three (3) Pothole Patching Operations were performed on I-75 at
milepost 5.1.” However, these repairs took place in the northbound lanes. Defendant
maintains that “if ODOT personnel had detected any potholes they would have been
reported and promptly scheduled for repair.”
       {¶5}    Plaintiff did not file a response.
                                      CONCLUSIONS OF LAW
       {¶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 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 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.
       {¶8}    To prove a breach of duty by defendant to maintain the highways plaintiff
must establish, by a preponderance of the evidence, that DOT 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. No evidence has shown that defendant had actual notice of the
damage-causing pothole.
       {¶9}   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 (pothole) developed. Spires v. Ohio Highway Department (1988), 61
Ohio Misc. 2d 262, 577 N.E. 2d 458. 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. There is insufficient evidence to show defendant had
constructive notice of the pothole.
       {¶10} 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.
       {¶11} Plaintiff has not shown, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to him or that his property damage was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing pothole was connected to any conduct under the control of defendant 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




KEVIN WHITE

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION
        Defendant

        Case No. 2011-02891-AD

Acting 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
                                                 Acting Clerk

Entry cc:

Kevin White                                      Jerry Wray, Director
15 W. 4th Street #407                            Department of Transportation
Cincinnati, Ohio 45202                           1980 West Broad Street
                                                 Columbus, Ohio 43223
SJM/laa
6/8
Filed 7/13/11
Sent to S.C. reporter 10/13/11
