[Cite as Henderson v. Ohio Dept. of Transp., 2011-Ohio-6963.]




                                      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




MEGHAN J. HENDERSON,

       Plaintiff,

       v.

OHIO DEPARTMENT OF TRANSPORTATION,

       Defendant.

Case No. 2011-07583-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶1}    On April 15, 2011, at approximately 3:45 p.m., plaintiff, Meghan
Henderson, was traveling west on Interstate 270 when her automobile struck a pothole
near State Route 315, causing damage to the right front rim.
        {¶2}    Plaintiff contends her 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
$154.79, the cost of associated repair expenses. The filing fee was paid.
        {¶3}    Defendant determined that plaintiff’s incident occurred at milepost 22.94
on I-270 in Franklin County. Defendant denied liability based on the contention that no
DOT personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s April 15, 2011 incident. Defendant related that, “[t]his section of roadway has
an average daily traffic count” of over 140,000 vehicles.        Defendant asserted           that
plaintiff did not offer any evidence to establish the length of time that the pothole existed
on I-270 prior to her incident. 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 22.94 on Interstate 270 the last time this roadway
was inspected prior to April 15, 2011. Defendant’s records show five pothole patching
operations were conducted on Interstate 270 in the same location as plaintiff’s incident
in the six months prior to plaintiff’s damage-causing event. 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 her or that her 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.
(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
MEGHAN J. HENDERSON,

        Plaintiff,

        v.

OHIO DEPARTMENT OF TRANSPORTATION,

        Defendant.

Case No. 2011-07583-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:

Meghan J. Henderson                               Jerry Wray, Director
1354 Bunker Hill Blvd.                            Department of Transportation
Apt. C                                            1980 West Broad Street
Columbus, Ohio 43220                              Columbus, Ohio 43223
9/6
Filed 9/13/11
Sent to S.C. reporter 1/27/12
