[Cite as Lay v. Ohio Dept. of Transp., Dist. 8, 2010-Ohio-6331.]

                                       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




WILLIAM LAY

        Plaintiff

        v.

OHIO DEPT. OF TRANSP., DIST. 8

        Defendant

Case No. 2010-05463-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, William Lay, filed this against defendant, Department of
Transportation (ODOT), contending his 2009 Honda Accord was damaged as a
proximate cause of negligence on the part of ODOT personnel in maintaining a
hazardous condition on State Route 264 in Hamilton County.               Specifically, plaintiff
asserted he suffered tire damage to his vehicle as a result of striking a pothole located
“near Dog Trot Road.” Plaintiff recalled the described incident occurred on March 14,
2010 at approximately 9:30 p.m. Plaintiff seeks damage recovery in the amount of
$243.62. The filing fee was paid.
        {¶ 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 March 14, 2010 described occurrence. Defendant located the pothole “at
milepost 3.16 on SR 264 in Hamilton County” and advised that “ODOT did not receive
any reports of the pothole or have any knowledge of the pothole prior to the (March 14,
2010) incident.” Defendant asserted that plaintiff failed to produce any evidence to
establish the length of time the pothole existed on State Route 264 prior to his damage
occurrence. Defendant suggested that “it is likely the pothole existed for only a short
time before the incident.”
       {¶ 3} Furthermore, defendant argued that plaintiff failed to prove the roadway
was negligently maintained.     Defendant explained that the ODOT “Hamilton County
Manager inspects all state roadways within the county at least two times a month.”
Apparently no potholes were detected near milepost 3.16 on State Route 264 the last
time that section of roadway was inspected before March 14, 2010. The claim file is
devoid of any roadway inspection records.          Defendant did submit “Maintenance
Records” for State Route 264 covering the period from September 14, 2009 to March
14, 2010. These records show that pothole patching repairs were needed in the vicinity
of milepost 3.16 on October 15, 2009, December 30, 2009, February 12, 2010, March 3,
2010, and March 4, 2010, the day of plaintiff’s incident.
       {¶ 4} 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 79, 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.
       {¶ 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 condition 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, 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.
      {¶ 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 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. 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




WILLIAM LAY

      Plaintiff

      v.

OHIO DEPT. OF TRANSP., DIST. 8

      Defendant

      Case No. 2010-05463-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:

William Lay                                     Jolene M. Molitoris, Director
4588 East Miami River Road                      Department of Transportation
Cleves, Ohio 45002                              1980 West Broad Street
                                 Columbus, Ohio 43223
RDK/laa
8/19
Filed 9/2/10
Sent to S.C. reporter 12/17/10
