[Cite as Patel v. Ohio Dept. of Transp., 2010-Ohio-6337.]

                                       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




MUKESH PATEL

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2010-07521-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Mukesh Patel, filed this action against defendant, Department of
Transportation (ODOT), contending that his 2009 Mini Cooper was damaged as a
proximate cause of negligence on the part of ODOT personnel in maintaining a
hazardous condition on Interstate 70 West in Belmont County. Specifically, plaintiff
related he was traveling “around mile marker 198, over a bridge when my car had an
encounter with a large pothole, which damaged the front wheel and tire.”               Plaintiff
recalled the described incident occurred on May 13, 2010 at approximately 1:00 a.m.
Plaintiff filed this complaint seeking to recover damages in the amount of $355.00, the
total cost of replacement parts and related repairs. The $25.00 filing fee was paid and
plaintiff requested reimbursement of that cost along with his damage claim.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of any roadway defects on Interstate 70 prior to plaintiff’s
May 13, 2010 incident. Defendant related that ODOT’s “investigation indicates that the
location of Plaintiff Patel’s incident would be at approximately state milepost 198.7 or
county milepost 0.05 in Belmont 1.75 County.” Defendant denied receiving any prior
calls or complaints about a pothole in the vicinity of that location despite the fact that
“[t]his section of roadway has an average daily traffic count” of over 15,000 vehicles.
Defendant asserted that plaintiff did not offer any evidence to establish the length of
time any pothole existed in the vicinity of milepost 198.7 on Interstate 70 prior to 1:00
a.m. on May 13, 2010. Defendant suggested that “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} Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Belmont 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 in the vicinity of plaintiff’s incident the last time that section of
roadway was inspected prior to May 13, 2010. The claim file is devoid of any inspection
record. Defendant argued that plaintiff has failed to offer any evidence to prove his
property damage was attributable to any conduct on the part of ODOT personnel.
Defendant asserted that “the roadway was in relatively good condition at the time and in
the general vicinity of plaintiff’s incident.” Defendant stated that, “[a] review of the six-
month maintenance history (record submitted) for the area in question reveals that one
(1) pothole patching operation was conducted in the westbound direction of I-70.” The
one earlier patching operation was performed on January 6, 2010. Defendant noted,
“that if ODOT personnel had detected any defects they would have been promptly
scheduled for repair.”
       {¶ 4} Plaintiff filed a response attaching five photographs of the roadway area
on Interstate 70 near milepost 198.7. The photographs taken on July 22, 2010 depict a
roadway surface where a pothole has been patched and the patching material shows
signs of some deterioration.
       {¶ 5} For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his 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
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 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 no evidence defendant had actual notice of the potholes
on Interstate 70 prior to the night of May 13, 2010.
       {¶ 8} Therefore, to find liability, plaintiff must prove that ODOT had constructive
notice of the defects.    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.
       {¶ 9} 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 defects are 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 1, 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. No evidence has shown ODOT
had constructive notice of the pothole.
       {¶ 10} 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 pothole 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 one occasion 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 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.
       {¶ 11} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained known hazardous roadway conditions. Plaintiff failed
to prove his 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
MUKESH PATEL

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-07521-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:

Mukesh Patel                                     Jolene M. Molitoris, Director
283 East North Street                            Department of Transportation
Worthington, Ohio 43085                          1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
8/9
Filed 9/8/10
Sent to S.C. reporter 12/17/10
