[Cite as Ozias v. Ohio Dept. of Transp., 2010-Ohio-6542.]

                                       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




JAMIE R. OZIAS

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

Case No. 2009-09094-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Jamie R. Ozias, filed this action against defendant, Department of
Transportation (ODOT), contending that his 2009 Chevrolet Corvette was damaged as
a proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 75 North in Hamilton County. Plaintiff related he was traveling
north on Interstate 75 “between milemarker 10.5 and milemarker 12.5” when his car
struck a large “pothole in the highspeed lane” causing tire and wheel damage to the
vehicle.     Plaintiff recalled his damage incident occurred on September 6, 2009 at
approximately 2:30 p.m.            Plaintiff noted the general area where his damage event
occurred is “known as the Lockland split (and) has been under construction for most of
the summer” of 2009. In his complaint, plaintiff requested damages in the amount of
$500.00, his insurance coverage deductible for automotive repairs. The filing fee was
paid.
        {¶ 2} Defendant denied any liability in this matter based on the contention that
no ODOT personnel had any knowledge of the particular pothole on Interstate 75 North
prior to plaintiff’s September 6, 2009 property damage occurrence.                    Defendant
acknowledged the area where plaintiff’s incident occurred was near a working
construction project on Interstate 75, but was not within the project limits. Defendant
denied receiving any prior calls or complaints regarding a pothole between mileposts
10.5 and 12.5 on Interstate 75 despite the fact “[t]his section of roadway has an average
daily traffic count between 145,600 to 166,810 vehicles.”
      {¶ 3} Defendant asserted plaintiff failed to offer evidence to establish his
property damage was attributable to any conduct on the part of ODOT. Defendant
further asserted plaintiff failed to produce evidence to prove the roadway was
negligently maintained. Defendant related that the ODOT “Hamilton County Manager
conduct(s) 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
between mileposts 10.5 and 12.5 on Interstate 75 the last time that section of roadway
was inspected prior to September 6, 2009. The claim file is devoid of any inspection
record. Defendant advised, “(a) review of the six-month maintenance history (record
submitted) for the area in question reveals that one (1) pothole repair was done (May
15, 2009) and ninety-two (92) other maintenance operations were performed between
state mileposts 10.5 to 12.5.”     The last time ODOT personnel were in the area
performing maintenance operations prior to September 6, 2009 was on September 2,
2009. Defendant stated “if ODOT personnel had found any potholes they would have
been repaired.”
      {¶ 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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he 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 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 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.    Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the pothole must be presented.
      {¶ 7} “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of
Fahle (1950), 90 Ohio App. 195, 197-198, 48 O.O. 231, 105 N.E. 2d 429. “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.       In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, 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.
      {¶ 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 developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458. No evidence was presented to establish the length of
time that the particular pothole was present. 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. Plaintiff has failed to prove that defendant had
constructive notice of the pothole. 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 that plaintiff
may have suffered from the roadway defect.




                               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




JAMIE R. OZIAS

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

      Case No. 2009-09094-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:

Jamie R. Ozias                                  Jolene M. Molitoris, Director
7043 Ivory Lane                                 Department of Transportation
Middletown, Ohio 45044                          1980 West Broad Street
                                                Columbus, Ohio 43223
RDK/laa
8/12
Filed 9/20/10
Sent to S.C. reporter 12/29/10
