[Cite as Stoller v. Ohio Dept. of Transp., 2010-Ohio-4960.]

                                       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




JEFFERY B. STOLLER, et al.

        Plaintiffs

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-03177-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On February 14, 2010, at approximately 3:30 p.m., plaintiff, Teresa E.
Stoller, was traveling south on US Route 23 in Franklin County, when her 2003
Mercedes Benz C320 struck a pothole causing tire and rim damage to the vehicle.
Plaintiff specifically located the pothole at “[r]ight before the exit” to Interstate 270 East.
Plaintiff asserted the damage to her 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 filed this complaint seeking to
recover $568.77, the total cost of replacement parts she incurred as a result of striking
the pothole on US Route 23. The filing fee was paid.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s February 14, 2010 described occurrence. Defendant advised ODOT records
show no complaints of a pothole were received at that location on US Route 23 South
described by plaintiff (milepost 22.91). Defendant did submit documentation that seven
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complaints of potholes on US Route 23 were received prior to plaintiff’s incident, but
explained “none are in the same location as plaintiff’s incident.” One pothole complaint
received on February 12, 2010 located the defect at “Southbound bridge over Interstate
270 far right lane,” which according to ODOT documentation, corresponds to milepost
23.0. From, plaintiff’s description defendant located the pothole plaintiff’s vehicle struck
at milepost 22.91. Defendant related this section of US Route 23 “has an average daily
traffic count” of over 70,000 vehicles. Defendant asserted plaintiff did not provide any
evidence to “indicate how long the pothole” existed at milepost 22.91 prior to her
property damage occurrence. Defendant suggested, “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.”
       {¶ 3} Furthermore, defendant contended plaintiff did not offer any evidence the
roadway was negligently maintained. Defendant also contended plaintiff did not provide
evidence to prove her damage was caused by any conduct attributable to ODOT.
Defendant noted that the ODOT “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 22.91 on US
Route 23 the last time that section of roadway was inspected prior to February 14,
2010. No inspection records were provided. Defendant stated US Route 23 “was in
good condition at the time and in the general vicinity of the plaintiff’s incident.”
Defendant’s records show ODOT personnel patched potholes in the vicinity of plaintiff’s
incident on January 25, 2010. Records also show a pothole was patched at milepost
23.0 on the same day as plaintiff’s damage occurrence, February 14, 2010.
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      {¶ 4} Despite filing a response, plaintiff did not submit any evidence to establish
the length of time the pothole at milepost 22.91 on US Route 23 existed prior to 3:30
p.m. on February 14, 2010. It should be noted that evidence in another claim filed in
this court, 2010-03118-AD, indicates a pothole was present at milepost 22.91 on US
Route 23 before 3:45 p.m. on February 12, 2010.
      {¶ 5} 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. 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.
      {¶ 6} Defendant has the duty to maintain its highways in a reasonably safe
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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.
       {¶ 7} 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 defendant had actual notice of the pothole
on US Route 23 prior to plaintiff’s February 14, 2010 incident. However, the evidence
presented is insufficient to establish liability on an actual notice basis.
       {¶ 8} Therefore, to find liability plaintiff must prove 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 the
defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458.
       {¶ 9} Evidence is available to establish the particular damage-causing pothole
at milepost 22.91 was present on the roadway at least forty-seven hours before
plaintiff’s property damage event.      This evidence is sufficient to base a finding of
constructive notice. To prove constructive notice, plaintiff must show sufficient time has
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Case No. 2006-03532-AD                   -5-               MEMORANDUM DECISION



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, 31 Ohio Misc. 2d at 4, 31 OBR 64, 507
N.E. 2d 1179.      “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. Sufficient evidence has proven ODOT had
constructive notice of the roadway condition. “[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. Constructive notice of roadway potholes has been determined in multiple
claims involving less than a twenty-four hour time frame.         See McGuire v. Ohio
Department of Transportation (2002), 2001-08722-AD; Piscioneri v. Ohio Dept. of
Transportation, District 12; Ct. of Cl. No. 2002-10836-AD, 2003-Ohio-2173, jud; Kill v.
Case No. 2006-03532-AD                   -6-               MEMORANDUM DECISION



Ohio Department of Transportation, Ct. of Cl. No. 2003-01512-AD, 2003-Ohio-2620,
jud; Zeigler v. Department of Transportation, Ct. of Cl. No. 2003-01652-AD, 2003-Ohio-
2625; Sheaks v. Ohio Department of Transportation, Ct. of Cl. No. 2003-02179-AD,
2003-Ohio-2176, jud.
      {¶ 10} However, in the matter of Pompignano v. Ohio Dept. of Transp., Ct. of Cl.
No. 2005-02117-AD, jud; 2005-Ohio-3976, in a Motion for Court Review, the court
concluded in reversing a determination by the Clerk that thirteen hours constructive
notice of a defect is insufficient notice to invoke liability on ODOT.     The court, in
reversing the finding of constructive notice, quoted and adopted ODOT’s argument: “It
is inappropriate that ODOT be held negligent for not patrolling every square mile of
roadway every twelve hours. Such a ruling is against all case law created outside the
limited arena of these administrative decisions.” (Defendant’s motion for court review,
page 7). In its reversal order, the court also recognized a constructive notice standard
involving down signage. The court noted in finding, “that evidence of a stop sign being
down for less than 24 hours was not enough time to impute constructive notice of its
condition to ODOT.” See Cushman v. Ohio Dept. of Transp. (1995), 91-11591; affirmed
(March 14, 1006), Franklin App. No. 95AP107-8844. The court, in the instant claim,
determines constructive notice of the pothole was imputed considering the existing
evidence establishing the pothole was present on the roadway for more than forty-
seven hours before plaintiff’s damage occurrence. Furthermore, the fact defendant’s
personnel were in the immediate proximity of the damage-causing pothole the day of
the incident coupled with the evidence the pothole was present on February 12, 2010 is
sufficient to invoke liability on the part of ODOT. Weitzman v. Ohio Dept. of Transp., Ct.
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of Cl. No. 2008-07942-AD; affirmed (April 8, 2009), 2008-Ohio-7129.          Defendant is
consequently liable to plaintiff in the amount of $568.77, plus the $25.00 filing fee which
may be reimbursed as compensable costs pursuant to 2335.19. See Bailey v. Ohio
Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d
990.
Case No. 2006-03532-AD                  -8-               MEMORANDUM DECISION




                              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




JEFFERY B. STOLLER, et al.

      Plaintiffs

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-03177-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
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Case No. 2006-03532-AD                 -9-              MEMORANDUM DECISION



of plaintiff in the amount of $593.77, which includes the filing fee. Court costs are
assessed against defendant.




                                       DANIEL R. BORCHERT
                                       Deputy Clerk

Entry cc:

Jeffery B. Stoller                     Jolene M. Molitoris, Director
Teresa E. Stoller                      Department of Transportation
913 Evergreen Circle                   1980 West Broad Street
Willard, Ohio 44890                    Columbus, Ohio 43223
RDK/laa
5/18
Filed 6/11/10
Sent to S.C. reporter 10/11/10
