[Cite as Jennings v. Ohio Dept. of Transp., 2010-Ohio-6547.]

                                      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




FENWICK JENNINGS

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-04009-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Fenwick Jennings, filed this action against defendant, Department
of Transportation (ODOT), contending that his 2001 Chrysler Sebring 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. Plaintiff related that his wife was
driving his car on Interstate 71 on February 28, 2010 at approximately 2:00 p.m., when
the vehicle “hit a huge pothole located on 71 north around the 270 area.” According to
plaintiff, the impact of striking the pothole caused damage to the ball joint and tie rod
end on the automobile. In his complaint, plaintiff requested damage recovery in the
amount of $694.30, the total cost of replacement parts and related repair expenses
incurred in having the Chrysler Sebring repaired. 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 February 28, 2010 described incident. Defendant advised that ODOT records
show no complaints of a pothole were received at the location on Interstate 71
described by plaintiff (milepost 28.15). Defendant noted that the particular section of
roadway, “has an average daily traffic count between 103,160 and 124,050 vehicles,”
yet no prior complaints were received regarding a pothole at milepost 28.15 on
Interstate 71. Defendant asserted that plaintiff failed to offer any evidence to prove that
his property damage was attributable to ODOT personnel. Defendant contended that
plaintiff failed to prove his property damage was proximately caused by negligent
maintenance on the part of ODOT.         Defendant explained 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 at milepost 28.15 on Interstate 71 the last time that section of roadway was
inspected before February 28, 2010. Defendant’s maintenance records show “that two
(2) pothole patching operations were conducted” in the vicinity of milepost 28.15 during
the six-month period prior to February 28, 2010.         The maintenance record (copy
submitted) indicates that ODOT crews patched potholes in the area including milepost
28.15 on October 6, 2009, and December 15, 2009. Defendant contended that plaintiff
failed to produce evidence to establish the length of time the particular pothole existed
prior to 2:00 p.m. on February 28, 2010. Defendant stated that “if ODOT personnel had
detected any defects they would have been promptly scheduled for repair.”
      {¶ 3} To prevail on a claim of negligence, plaintiff 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.
      {¶ 4} 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.
      {¶ 5} 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 defendant had actual notice of the pothole
on Interstate 71 prior to February 28, 2010.
      {¶ 6} 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.
      {¶ 7} 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. “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.
      {¶ 8} 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 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.
       {¶ 9} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained a known hazardous roadway condition. Plaintiff failed
to prove his property damage was connected to any conduct under the control of
defendant, 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




FENWICK JENNINGS

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

       Case No. 2010-04009-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
                                                 Deputy Clerk

Entry cc:

Fenwick Jennings                                 Jolene M. Molitoris, Director
1847 Pannell Avenue                              Department of Transportation
Columbus, Ohio 43207                             1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
8/6
Filed 9/20/10
Sent to S.C. reporter 12/29/10
