[Cite as Meyer v. Ohio Dept. of Transp., 2010-Ohio-6630.]

                                      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




ROBERT E. MEYER

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-07628-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On February 14, 2010, at approximately 7:45 p.m., plaintiff, Robert E.
Meyer, was traveling west on State Route 125 in Clermont county “near the 7.0 mile
post just before the village limits for the Village of Amelia,” when his 2007 Mercedes
Benz C280W struck a pothole causing tire, rim, and bumper damage to the vehicle.
Plaintiff contended the damage to his car was proximately caused by negligence on the
part of defendant, Department of Transportation (ODOT), in failing to maintain the
roadway free of defects such as potholes. Plaintiff asserted ODOT, “either knew or
should have known of said dangerous condition in roadway and failed to either warn or
make said dangerous condition safe.” Plaintiff filed this complaint seeking to recover
$1,083.65, the cost of replacement parts and related repair expenses. The filing fee
was paid.
        {¶ 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 advised the pothole plaintiff’s vehicle struck
was located “between mileposts 6.89 and 8.00 on SR 125 in Clermont County.”
Defendant denied receiving any calls or complaints regarding a pothole at that location
on State Route 125 prior to plaintiff’s February 14, 2010 property damage event.
Defendant suggested, “it is likely the pothole existed for only a short time before the
incident.” Furthermore, defendant asserted plaintiff did not produce any evidence to
prove his property damage was caused by negligent maintenance.                   Defendant
explained the ODOT “Clermont County Manager inspects all state roadways within the
county at least two times a month.” Apparently, no potholes were discovered between
mileposts 6.89 and 8.00 on State Route 125 the last time that section of roadway was
inspected prior to February 14, 2010. The claim file is devoid of any inspection record.
Defendant’s submitted “Maintenance Records” show ODOT crews patched potholes in
the vicinity of plaintiff’s incident on January 19, 2010 and January 26, 2010.
       {¶ 3} Plaintiff filed a response contending defendant “either knew or should
have known about the pothole that caused the damage.”               Plaintiff recorded the
particular area of State Route 125 “is heavily patrolled by the State Highway Patrol,
Clermont County Sheriff, and the Amelia Police Department.”           Additionally, plaintiff
noted ODOT crews were conducting snow removal operations on State Route 125
earlier in the day on February 14, 2010.        Plaintiff asserted the ODOT personnel
removing snow on State Route 125 should have discovered the pothole located
between mileposts 6.89 and 8.00. Plaintiff further asserted he was informed by Ohio
State Patrol Officer Christopher Krantz, who investigated the February 14, 2010
property damage incident, that ODOT had been notified of the pothole earlier in the day
on February 14, 2010 and did not respond.           Plaintiff submitted an affidavit from
Rebecca C. Myer, a witness to the damage event and aftermath, who wrote: “Krantz
told both me and Robert Meyer that ODOT had been made aware of the pothole but
that they could not get someone out to repair the pothole until 11:00 the next day
(February 15, 2010).”     Both plaintiff and Rebecca C. Meyer noted the particular
damage-causing pothole was large. Defendant denied receiving any reports about the
pothole from any entity prior to plaintiff’s property damage event.        Plaintiff did not
provide a statement from Officer Christopher Krantz.
       {¶ 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 conditions or defects 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 ti 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. The evidence is inconclusive that defendant had actual notice of
the pothole on State Route 125 prior to the evening of February 14, 2010.
      {¶ 7} 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.
      {¶ 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, at 4. “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
despite the contention ODOT crews may have conducted snow removal operations on
State Route 125 at sometime prior to 7:45 p.m. on February 14, 2010.
        {¶ 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 conditions. 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 known hazardous roadway conditions. 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




ROBERT E. MEYER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

          Case No. 2010-07628-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:

Robert E. Meyer                                    Jolene M. Molitoris, Director
P.O. Box 576                                       Department of Transportation
302 Liming Farm                                    1980 West Broad Street
Mt. Orab, Ohio 45154                               Columbus, Ohio 43223

RDK/laa
9/7
Filed 10/12/10
Sent to S.C. reporter 1/21/11
