[Cite as Davis v. Ohio Dept. of Transp., 2011-Ohio-5535.]



                                       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




DENISE DAVIS,                                                  Case No. 2011-03693-AD

       Plaintiff,

       v.                                                      Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

       Defendant.        MEMORANDUM DECISION


        {¶ 1} Plaintiff, Denise Davis filed this action against defendant, Ohio

Department of Transportation (ODOT), contending that her vehicle was damaged as a

proximate result of negligence on the part of ODOT in maintaining a hazardous

condition on State Route 22. In her complaint, plaintiff described the particular damage

event noting that she “[h]it a large pothole on 7679 Montgomery Road & had to replace

the damaged tire & the other three due to AWD of my vehicle. I called and was told that

the hole had been reported on 3/1/2011.” Plaintiff seeks recovery of damages in the

amount of $1,197.84, the stated total amount for four replacement tires. 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 incident. Defendant related that plaintiff’s incident occurred between mileposts

10.66 and 10.72 on US 22 in Hamilton County.                Defendant denied receiving any prior

calls or complaints about a pothole or potholes in the vicinity of that location. Defendant
asserted that plaintiff did not offer any evidence to establish the length of time the

pothole existed on US 22 prior to her incident.

       {¶ 3} Additionally, defendant contended that plaintiff did not offer any evidence

to prove that the roadway was negligently maintained. Defendant advised that the

ODOT “Hamilton County Manager inspects all state roadways within the county at least

two times a month.” Apparently, no potholes were discovered in the vicinity of plaintiff’s

incident the last time that section of roadway was inspected prior to March 2, 2011. The

claim file is devoid of any inspection record. Defendant argued that plaintiff has failed to

offer any evidence to prove her property damage was attributable to any conduct on the

part of ODOT personnel.         Defendant stated that, “[a] review of the six-month

maintenance history [record submitted] also reveals that general maintenance and

inspection is conducted to ensure a properly maintained roadway.” Plaintiff did not file a

response.

       {¶ 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. 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 insufficient evidence that defendant had actual notice of

the pothole on US 22 prior to March 2, 2011.

      {¶ 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. Insufficient evidence has been submitted to show that ODOT had constructive

notice of the pothole.

       {¶ 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. 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 her 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




DENISE DAVIS,                                             Case No. 2011-03693-AD

        Plaintiff,

        v.                                                Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

        Defendant.        ENTRY OF ADMINISTRATIVE DETERMINATION



        {¶ 11}            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
                                                   Acting Clerk

Entry cc:

Denise Davis                                       Jerry Wray, Director
3460 Davis Lane                                    Department of Transportation
Cincinnati, Ohio 45237                             1980 West Broad Street
                                                   Columbus, Ohio 43223




6/17
Filed 7/19/11
Sent to S.C. reporter 10/27/11
