[Cite as Edwards v. Dept. of Transp., 2010-Ohio-6623.]

                                      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




KEVIN EDWARDS

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2010-05889-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Kevin Edwards, filed this action against defendant, Department of
Transportation (ODOT), contending that his 1998 Honda Civic was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 270 South in Franklin County. Plaintiff recorded he was traveling
south on Interstate 270 on March 26, 2010 at approximately 10:40 a.m., when his
vehicle struck a pothole causing tire and rim damage.         Plaintiff related, “[b]etween
milemarker 46 and 47 (on Interstate 270) there are four to six holes to the far right lane.”
Apparently, plaintiff’s automobile was damaged when it struck one of the four to six
potholes located between milemarker 46.0 and 47.0.             In his complaint, plaintiff
requested damages in the amount of $354.00, the cost of replacement parts. Payment
of the filing fee was waived.
        {¶ 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 22, 2010 described occurrence.         Defendant located the particular
pothole between “mileposts 46.0 and 47.0 on I-270 in Franklin County.” Defendant
explained that ODOT records show no reports of a pothole at the location recorded prior
to plaintiff’s damage event.        Defendant related that ODOT received seventeen
complaints of potholes on Interstate 270, “from March 15, 2010 to March 23, 2010 but
these are not in the same location as plaintiff’s incident.”
       {¶ 3} Defendant argued that plaintiff did not provide any evidence to establish
the length of time the particular pothole was present on the roadway prior to March 22,
2010. Defendant suggested that, “it is more likely than not the pothole existed in that
location for only a relatively short amount of time before plaintiff’s incident.”
       {¶ 4} Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Franklin 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 March 22, 2010.              Defendant asserted that, “[t]he
roadway was in relatively good condition at the time of plaintiff’s incident.” Defendant
argued plaintiff failed to prove his property damage was attributable to any conduct on
the part of ODOT personnel.         Defendant sated that, “[a] review of the six-month
maintenance history (record submitted) for the area in question reveals that six (6)
pothole patching operations were conducted in the general vicinity of plaintiff’s incident
on southbound I-270.”      The last time pothole patching operations were conducted
before March 22, 2010 was March 4, 2010. Defendant noted, “that if ODOT personnel
had detected any defects they would have been promptly scheduled for repair.”
       {¶ 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 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 defendant had actual notice of the pothole
on Interstate 270 prior to 5:00 p.m. on March 22, 2010.
      {¶ 8} Therefore, to find liability, plaintiff must prove that 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 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 defect 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. “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. No evidence has shown that 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 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 various occasions 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.
       {¶ 11} 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 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




KEVIN EDWARDS

      Plaintiff
        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-05889-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:

Kevin Edwards                                     Jolene M. Molitoris, Director
3665 Hollowcrest Avenue                           Department of Transportation
Columbus, Ohio 43223                              1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
8/30
Filed 10/12/10
Sent to S.C. reporter 1/21/11
