[Cite as Thoren v. Ohio Dept. of Transp., Dist. 12, 2010-Ohio-4790.]

                                       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




CYNTHIA L. THOREN

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION, DIST. 12

        Defendant

        Case No. 2010-02871-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Cynthia L. Thoren, filed this action against defendant, Department
of Transportation (ODOT), contending her 2005 Dodge Neon was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
roadway condition on State Route 44 in Geauga County.                  Plaintiff pointed out she
sustained tire and wheel damage to her car when the vehicle struck “a rather large and
deep pothole going over a bridge” on State Route 44 “a little south of the entrance to
422 E in Auburn Township.” Plaintiff recalled the damage incident occurred on January
19, 2010 at approximately 3:05 p.m. Plaintiff requested damage recovery in the amount
of $526.63, the cost of replacement parts and related repair expenses she incurred
resulting from the reported January 19, 2010 incident when her car struck the pothole
on State Route 44. In her complaint, plaintiff suggested the particular damage-causing
pothole was patched that same day, because she recalled, “passing some trucks that
looked like they had been working on the roads just before I hit the bad spot in the
road.” The filing fee was paid.
Case No. 2010-02871-AD                    -2-               MEMORANDUM DECISION



      {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular pothole on the roadway prior to plaintiff’s
property damage occurrence.       Defendant related that ODOT phone logs show one
complaint on October 6, 2009 of a pothole on “SR 44 SB 1.1 mile south of 1422 at
LaDue overpass.” Defendant advised that particular pothole was patched the same day
the complaint was received (October 6, 2009). Defendant denied having any notice
either actual or constructive of the pothole plaintiff’s car struck on January 19, 2010,
which ODOT located “at milepost 1.35 on SR 44 in Geauga County.” Defendant argued
plaintiff did not offer any evidence to establish the length of time the pothole existed at
milepost 1.35 prior to her damage event and therefore, suggested “it is likely the pothole
existed for only a short time before the incident.” Defendant asserted plaintiff failed to
prove her property damage was attributable to negligent maintenance on the part of
ODOT. Defendant explained that the ODOT “Geauga County Manager inspects all
state roadways within the county at least two times a month.” Apparently no potholes
were discovered in the vicinity of milepost 1.35 on State Route 44 the last time that
section of roadway was inspected prior to January 19, 2010. The claim file is devoid of
any copies of roadway inspection records compiled by defendant’s Geauga County
Manager. The maintenance record (copy submitted) show ODOT conducted pothole
patching operations on State Route 44 in the vicinity of plaintiff’s incident on October 6,
2009, December 31, 2009, and January 19, 2010, the day the described damage event
occurred. Pothole patching completed on January 19, 2010 was done at milepost 3.00.
Plaintiff, in her complaint, related the pothole her vehicle struck on State Route 44 “was
a little south of the entrance to 422 E.”     Defendant’s submitted records locate the
entrance to US Route 422 at milepost 2.53 on State Route 44.
      {¶ 3} Plaintiff filed a response disputing the contention that ODOT did not have
notice of the pothole her car struck. Plaintiff noted the damage-causing pothole “went
all the way across the bridge” on State Route 44 that spans US Route 422. Plaintiff
reasserted that she noticed ODOT personnel conducting pothole patching on State
Route 44 “a mile or so before the bridge.” Plaintiff contended the fact ODOT personnel
were in the area at the time of her incident constitutes sufficient evidence of notice to
invoke liability on the part of defendant for her damage. Plaintiff also contended that the
particular pothole existed for an extended period of time due to the immense size of the
defect. Plaintiff implied defendant acted negligently in conducting roadway inspections.
      {¶ 4} For plaintiff to prevail on a claim of negligence she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her 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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that she suffered a loss
and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio
State University (1977), 76-0368-AD. 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.
       {¶ 7} 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 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. Evidence tends to indicate defendant in the instant claim had
notice of the pothole plaintiff’s car struck and failed to reasonably respond. The fact that
ODOT crews were patching potholes on State Route 44 in the immediate vicinity of
plaintiff’s damage incident and at the same time as the damage incident constitutes
evidence of notice. See Lorek v. Ohio Dept. of Transp. (1999), 99-06472-AD, also
Reaves v. Dept. of Transp. (1999), 99-03449-AD. Based on the rationale of Denis, the
court concludes defendant is liable to plaintiff for all damages claimed, $526.63, plus the
$25.00 filing fee costs. Bailey v. Ohio Department of Rehabilitation and Correction
(1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.




                                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




CYNTHIA L. THOREN

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION, DIST. 12
        Defendant

        Case No. 2010-02871-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 plaintiff in the amount of $551.63, which includes the filing fee. Court costs are
assessed against defendant.




                                          DANIEL R. BORCHERT
                                          Deputy Clerk

Entry cc:

Cynthia L. Thoren                         Jolene M. Molitoris, Director
1867 Sheridan Avenue N.E.                 Department of Transportation
Warren, Ohio 44483                        1980 West Broad Street
                                          Columbus, Ohio 43223
RDK/laa
5/24
Filed 6/8/10
Sent to S.C. reporter 10/1/10
