[Cite as Hamilton v. Ohio Dept. of Transp., 2010-Ohio-6329.]

                                      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




BRENDA S. HAMILTON

       Plaintiff

       v.

THE OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-04459-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Brenda S. Hamilton, filed this action against defendant,
Department of Transportation (ODOT), contending her 1992 Ford F250 pick-up truck
was damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on Interstate 71 South in Franklin County. Specifically, plaintiff
asserted her truck was damaged beyond repair as a result of striking a pothole on “71
South near the Frank Road exit.” In her complaint, plaintiff requested damage recovery
of $2,000.00, the stated value of the 1992 Ford F250. The $25.00 filing fee was paid
and plaintiff requested reimbursement of that cost along with her damage claim.
        {¶ 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 explained the date of plaintiff’s described damage
incident was February 21, 2010.               Defendant advised that ODOT records show no
complaints of a pothole were received at the location on Interstate 71 described by
plaintiff which, “would be at county milepost 12.79 or state milepost 103.80 on I-71 in
Franklin County.” Defendant noted that ODOT records show no reports of a pothole at
the location indicated prior to plaintiff’s damage event despite the fact “[t]his section of
roadway had an average daily traffic count between
86,490 and 103,550 vehicles.”       Defendant contended plaintiff did not produce any
evidence to establish the length of time the pothole at milepost 103.80 on Interstate 71
existed prior to her February 21, 2010 damage occurrence.
       {¶ 3} Furthermore, defendant contended that plaintiff failed to offer evidence to
prove ODOT negligently maintained the roadway. Defendant asserted that plaintiff has
not shown her property damage was attributable to conduct on the part of ODOT
personnel. Defendant explained 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 103.80
on Interstate 71 the last time that particular section of roadway was inspected prior to
February 21, 2010. The claim file is devoid of any inspection record. Defendant did
submit a copy of the “Maintenance History” for Interstate 71 in Franklin County covering
the dates from August 21, 2009 to February 19, 2010. This record shows that ODOT
crews patched potholes in the area including milepost 103.80 on September 29, 2009,
November 2, 2009, December 21, 2009, December 30, 2009, January 28, 2010 and
February 8, 2010. No repair activity occurred in the area after the patching operation
performed on February 8, 2010.        Defendant stated, “that if ODOT personnel had
detected any defects they would have been promptly scheduled for repair.”
       {¶ 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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that she 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 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 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; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
      {¶ 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 pothole
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458. No evidence was presented to establish the 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




BRENDA S. HAMILTON

      Plaintiff

      v.

THE OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-04459-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:

Brenda S. Hamilton                               Jolene M. Molitoris, Director
4075 Colonial Place                              Department of Transportation
Grove City, Ohio 43123                           1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
8/9
Filed 9/8/10
Sent to S.C. reporter 12/17/10
