[Cite as Mindlin v. Ohio Dept. of Transp., 2011-Ohio-3871.]



                                      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




HAROLD MINDLIN

       Plaintiff

       v.

OH DEPARTMENT OF TRANSPORTATION

       Defendant


        Case No. 2010-12753-AD


Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT
        {¶ 1} On November 30, 2010, at approximately 2:50 p.m., plaintiff, Harold
Mindlin, was traveling east on Interstate 270 when his automobile struck a pothole in the
right lane at or near mile marker 50, causing substantial damage to the right front wheel
and tire.
        {¶ 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
$250.00, the cost of replacement parts 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 denies receiving any previous reports of the damage-causing pothole
Case No. 2006-03532-AD                     -2-                MEMORANDUM DECISION



which plaintiff encountered. Defendant suggests, “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.”
       {¶ 4} Furthermore, defendant asserts plaintiff has not produced evidence to show
DOT negligently maintained the roadway. Defendant explains that the DOT 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 50 on Interstate 270 in the vicinity of plaintiff’s incident the last
time this roadway was inspected prior to November 30, 2010. Defendant’s records
show five pothole patching operations were conducted on Interstate 270 in the vicinity of
milepost 50 in the six-months prior to plaintiff’s damage-causing event.             Indeed,
defendant admits that pothole patching operations were conducted in the same location
as plaintiff’s incident and that “the last repair was made on November 30, 2010, which is
the day of plaintiff’s incident. Defendant maintains that if ODOT personnel had detected
any defects they would have been promptly scheduled for repair.”
                                    CONCLUSIONS OF LAW
       {¶ 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 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.
      {¶ 7} 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.
      {¶ 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
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 no evidence of constructive notice of the
pothole.
      {¶ 9} 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.
      {¶ 10} 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.
Case No. 2006-03532-AD                 -4-               MEMORANDUM DECISION



(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




HAROLD MINDLIN

      Plaintiff

      v.

OH DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-12753-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:
Case No. 2006-03532-AD          -6-             MEMORANDUM DECISION



Harold Mindlin                        Jerry Wray, Director
7001 Gardeners Path Way               Department of Transportation
Reynoldsburg, Ohio 43068-5144         1980 West Broad Street
                                      Columbus, Ohio 43223
SJM/laa
4/8
Filed 4/21/11
Sent to S.C. reporter 8/5/11
