[Cite as Sparks v. Dept. of Transp., 2010-Ohio-6666.]

                                       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




SHELBY JEAN SPARKS

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-06419-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Shelby Jean Sparks, filed this action against defendant,
Department of Transportation (ODOT), contending her vehicle was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on State Route 132 in Clermont County. Plaintiff related she was traveling on
State Route 132 “going into Batavia” when her vehicle struck a pothole “close to the
entrance of Sycamore Park.” Plaintiff noted the impact of striking the pothole caused
damage “to the passenger side in the wheel area” of her vehicle. Plaintiff recalled the
described incident occurred on March 16, 2010 at approximately 1:45 p.m.                In her
complaint, plaintiff requested damages in the amount of $241.86, the total stated cost of
replacement parts and repair expenses. The filing fee was paid.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular pothole on the roadway prior to plaintiff’s
property damage occurrence. Defendant advised no prior reports of a pothole were
received at the location described (milepost 10.80 on State Route 132) despite the fact
this section of roadway is “heavily traveled” with an average daily traffic count of over
5,000 vehicles. Defendant denied receiving any calls or complaints regarding a pothole
at milepost 10.80 on State Route 132 prior to plaintiff’s March 16, 2010 property
damage event. Defendant suggested, “it is likely the pothole existed for only a short
time before the incident.” Furthermore, defendant asserted plaintiff did not produce any
evidence to prove her property damage was caused by negligent maintenance.
Defendant explained the ODOT “Clermont County Manager inspects all state roadways
within the county at least two times a month.” Apparently no potholes were discovered
at milepost 10.80 on State Route 132 the last time that section of roadway was
inspected prior to March 16, 2010. The claim file is devoid of any inspection record.
Defendant did submit maintenance records for State Route 132 which show no pothole
repairs were made in the vicinity of milepost 10.80 during the six-month period
preceding March 16, 2010.
      {¶ 3} 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 79, 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.        This court, as trier of fact, determines
questions of proximate causation. Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51, 14
OBR 446, 471 N.E. 2d 477.
      {¶ 4} 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.
       {¶ 5} 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.
       {¶ 6} “[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, 47 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.
       {¶ 7} 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 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.
       {¶ 8} Ordinarily in a claim involving roadway defects, plaintiff must prove either:
1) defendant had actual or constructive notice of the defective condition 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 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




SHELBY JEAN SPARKS

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-06419-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:

Shelby Jean Sparks                              Jolene M. Molitoris, Director
2241 St. Rt. 232                                Department of Transportation
New Richmond, Ohio 45157                        1980 West Broad Street
                                                Columbus, Ohio 43223
RDK/laa
9/15
Filed 11/10/10
Sent to S.C. reporter 2/11/11
