[Cite as Olukoya v. Ohio Dept. of Transp., 2009-Ohio-7158.]

                                      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




DORIS H. OLUKOYA

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-07393-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)       On February 23, 2009, plaintiff, Doris H. Olukoya, was traveling south
on Interstate I490 “from E. 55th Street” in Cleveland, when her automobile struck a
pothole as she “attempted to enter (Interstate) 77 South.” The pothole caused tire and
wheel damage to plaintiff’s vehicle.
        {¶ 2} 2)       Plaintiff asserted that her property damage was proximately caused
by negligence on the part of defendant, Department of Transportation (ODOT), in failing
to maintain the roadway free of defects, such as potholes. Plaintiff filed this complaint
seeking to recover damages in the amount of $250.00, her insurance coverage
deductible for automotive repair. The $25.00 filing fee was paid and plaintiff requested
reimbursement of that cost along with her damage claim.
        {¶ 3} 3)       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 that the ODOT Cleveland office did receive
three complaints about potholes on Interstate 490 during February 2009, but two of
those complaints “are not in the area of plaintiff’s incident.” Defendant pointed out that
a motorist did complain about a pothole “on February 9, 2009 and it was filled on
February 18, 2009 which is five days before plaintiff’s incident.” Apparently the pothole
that was reported on February 9, 2009 and was patched on February 18, 2009 was the
same pothole that damaged plaintiff’s vehicle. 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.” Defendant asserted that plaintiff failed to produce
evidence to establish that her property damage was attributable to conduct on the part
of ODOT personnel. Defendant contended that plaintiff did not offer any evidence to
prove the length of time the particular pothole existed prior to her property damage
occurrence. Defendant related that “if ODOT personnel had detected any defects they
would have been promptly scheduled for repair.” Defendant’s records show potholes
were patched by ODOT in the vicinity of plaintiff’s incident on September 18, 2008,
January 5, 2009, and February 6, 2009.          There is no patching record submitted
concerning the pothole that was reported on February 9, 2009 and repaired on February
18, 2009.
                                CONCLUSIONS OF LAW
       {¶ 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. No evidence has shown defendant had actual notice of the
damage-causing pothole.
       {¶ 6} Therefore, to find liability plaintiff must prove 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 the
defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458. There is no indication defendant had constructive
notice of the pothole.
       {¶ 7} Ordinarily in a claim involving roadway potholes, plaintiff must prove that:
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. A pothole patch which deteriorates in less than ten
days is prima facie evidence of negligent maintenance. Matala v. Ohio Department of
Transportation, 2003-01270-AD, 2003-Ohio-2618; Schrock v. Ohio Dept. of Transp, Ct.
of Cl. No. 2005-02460-AD, 2005-Ohio-2479. Evidence has shown plaintiff’s vehicle was
damaged by a pothole that had been patched on February 18, 2009 and the repair
patch had failed by February 23, 2009.
       {¶ 8} The fact that the pothole plaintiff’s car struck deteriorated in a time frame
of less than one week warrants application of the standard expressed in Matala; Fisher
v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-04869-AD, 2007-Ohio-5288; Romes v.
Ohio Dept. of Transp., Ct. of Cl. No. 2008-01286-AD, 2008-Ohio-4624. Defendant is
liable to plaintiff for the damage claimed $250.00, plus the $25.00 filing fee which may
be awarded as compensable costs pursuant to R.C. 2335.19.                   Bailey v. Ohio
Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d
990.




                               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
DORIS H. OLUKOYA

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2009-07393-AD

Clerk Miles C. Durfey


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 plaintiff in the amount of $275.00, which includes the filing fee. Court costs are
assessed against defendant.




                                           MILES C. DURFEY
                                           Clerk

Entry cc:

Doris H. Olukoya                           Jolene M. Molitoris, Director
P.O. Box 45447                             Department of Transportation
Bedford, Ohio 44145-0447                   1980 West Broad Street
                                           Columbus, Ohio 43223

RDK/laa
10/28
Filed 11/18/09
Sent to S.C. reporter 3/5/10
