[Cite as Monteith v. Ohio Dept. of Transp., 2011-Ohio-1951.]

                                      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




MARTA S. MONTEITH

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-09787-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Marta S. Monteith, filed this action against defendant, Department
of Transportation (ODOT), contending her 2006 Chevrolet Cobalt was damaged on July
2, 2010 as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on State Route 235 in Lakeview, Ohio in Logan County.
Specifically, plaintiff claimed the right front rim on her car was dented when the vehicle
struck a pothole located between milemarkers 16 and 17 on State Route 235. Plaintiff
submitted photographs depicting the particular damage-causing roadway defect after
patching repairs had been made. Plaintiff seeks damage recovery in the amount of
$145.00, the stated cost of a replacement rim and related repair expense. 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 (between mileposts 16.0 and 17.0 on State Route
235) despite the fact this section of roadway is “heavily traveled” with an average daily
traffic count of over 1,900 vehicles. Defendant denied receiving any calls or complaints
regarding a pothole between mileposts 16.0 and 17.0 on State Route 235 prior to
plaintiff’s July 2, 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 “Logan County
Manager inspects all state roadways within the county at least two times a month.”
Apparently, no potholes were discovered between mileposts 16.0 and 17.0 on State
Route 235 the last time that section of roadway was inspected prior to July 2, 2010.
Defendant submitted roadway inspection reports covering the period from June 14,
2010 through July 14, 2010. The submitted reports indicate the area of State Route 235
between mileposts 16.0 and 17.0 was last inspected prior to plaintiff’s incident on June
16, 2010. This particular section of State Route 235 was inspected again on July 12,
2010. No potholes were reported on the particular roadway section on either occasion
covered in the submitted record. The submitted inspection report lists fifty-four entries
with no notations of potholes being discovered at any location inspected. Defendant
also submitted copies of maintenance records for State Route 235 which show pothole
patching operations were conducted in the vicinity between mileposts 16.0 and 17.0 on
January 20, 2010, March 9, 2010, and June 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 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. 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 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} 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. The fact that defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident on June 16, 2010 does not prove
negligent maintenance of the roadway on the part of ODOT. 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 plaintiff may have suffered from the pothole.
       {¶ 9} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained a known hazardous roadway condition. Plaintiff failed
to prove 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
MARTA S. MONTEITH

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-09787-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:

Marta S. Monteith                                 Jolene M. Molitoris, Director
4729 Vine Street                                  Department of Transportation
P.O. Box 86                                       1980 West Broad Street
Huntsville, Ohio 43324                            Columbus, Ohio 43223

RDK/laa
12/29
Filed 1/28/111
Sent to S.C. reporter 4/15/11
