[Cite as Guth v. Ohio Dept. of Transp.-Dist. 8, 2011-Ohio-1763.]

                                       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




JOE GUTH

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION-DISTRICT 8

        Defendant

Case No. 2010-09817-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION




        {¶ 1} Plaintiff, Joe Guth, filed this action against defendant, Department of
Transportation (ODOT), contending that his 2006 BMW was damaged as a proximate
cause of negligence on the part of ODOT personnel in maintaining a hazardous
condition on Interstate 71 North in Hamilton County. Specifically, plaintiff asserted that
he suffered tire damage to his vehicle as a result of striking a pothole “@ mile marker
8.” Plaintiff noted that the pothole measured approximately two feet long and one foot
wide. Plaintiff recalled that his property damage incident occurred on July 27, 2010 at
approximately 6:45 a.m. Plaintiff seeks damage recovery in the amount of $309.41, the
total cost of a replacement tire. The filing fee was paid.
        {¶ 2} Defendant contended that plaintiff failed to provide evidence establishing
his property damage was caused by any conduct attributable to ODOT. Defendant
asserted that plaintiff failed to offer evidence to show that his damage was caused by
negligent maintenance. Defendant pointed out that plaintiff “has presented no evidence
to indicate how long the pothole existed in the roadway prior to the (July 27, 2010)
incident.” Defendant related “that if ODOT personnel had detected any potholes they
would have been reported and promptly scheduled for repair.” Defendant noted that the
roadway on Interstate 71 North in the vicinity of milepost 8.0 “was in relatively good
condition at the time of plaintiff’s incident.”   Defendant explained that the ODOT
“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 or other defects were discovered near milepost 8.0 on Interstate 71 North the
last time that section of roadway was inspected prior to July 27, 2010. The claim file is
devoid of any inspection record.      Defendant did submit “Maintenance Records” for
Interstate 71 covering the period from January 27, 2010 to July 27, 2010.          These
records show that pothole patching repairs were conducted in the area including
milepost 8.0 on January 27, 2010, April 22, 2010, and May 18, 2010.
        {¶ 3} Plaintiff filed a response reporting that the pothole his car struck has not
been repaired and remains on the roadway. Plaintiff submitted a photograph depicting
the pothole at milepost 8.0 on Interstate 71 North. The photograph shows a minor
defect on the roadway. Plaintiff did not submit evidence to establish the length of time
that the damage-causing pothole at milepost 8.0 existed prior to 6:45 a.m. on July 27,
2010.
        {¶ 4} 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.
        {¶ 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 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 that defendant had actual notice of the
pothole on Interstate 71 prior to the morning of July 27, 2010.
      {¶ 7} Therefore, to find liability, plaintiff must prove that ODOT had constructive
notice of the defects.   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.
      {¶ 8} 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.
      {¶ 9} 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.
       {¶ 10} 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 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




JOE GUTH

      Plaintiff
        v.

OHIO DEPARTMENT OF TRANSPORTATION-DISTRICT 8

        Defendant

         Case No. 2010-09817-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:

Joe Guth                                          Jolene M. Molitoris, Director
2857 Observatory Avenue                           Department of Transportation
Cincinnati, Ohio 45208                            1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
11/24
Filed 1/26/111
Sent to S.C. reporter 4/8/11
