[Cite as Sandys v. Ohio Dept. of Transp., 2011-Ohio-3534.]

                                      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




ROBYN SANDYS

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-11200-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Robyn Sandys, filed this action against defendant, Ohio
Department of Transportation (ODOT), contending that her 2009 Pontiac G6 was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on Interstate 76 in Cuyahoga County. In her complaint, plaintiff
described the particular damage event noting that: “I was driving on I-76 and hit a very
large & deep pothole with my right front tire.” In her complaint, plaintiff recorded that the
damage incident occurred “on or about October 7, 2010, at 9:30 a.m.” Plaintiff seeks
recovery of damages in the amount of $250.00, her insurance coverage deductible for
vehicle repair costs incurred on October 7, 2010 when she paid to have her car
repaired. 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 October 7, 2010 incident.1             Defendant related that ODOT’s investigation
documents that plaintiff located the roadway defect “as southbound SR 176 coming
Case No. 2006-03532-AD                             -2-                   MEMORANDUM DECISION




Case No. 2006-03532-AD                             -2-                   MEMORANDUM DECISION



from westbound I-90/southbound I-71 split which would be milepost 13.35 in Cuyahoga
County.” Defendant denied receiving any prior calls or complaints about a pothole or
potholes in the vicinity of that location despite the fact that “[t]his section of roadway has
an average daily traffic count” of over 70,000 vehicles. Defendant asserted that plaintiff
did not offer any evidence to establish the length of time that any pothole existed in the
vicinity of milepost 13.35 on SR 176 prior to 9:30 a.m. on October 7, 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 “Cuyahoga 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 October 7, 2010. The claim file is devoid
of any inspection record. Defendant argued that plaintiff has failed to offer any evidence


       1
           According to defendant, plaintiff reported the incident via e-mail on October 6, 2010.
Case No. 2006-03532-AD                     -3-               MEMORANDUM DECISION



to prove that her property damage was attributable to any conduct on the part of ODOT
personnel. Defendant asserted that “SR 176 was in 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 no
(0) pothole patching operations were conducted in the general vicinity of SR 176 and I-
71.” Defendant noted, “that if ODOT personnel had detected any defects they would
have been promptly scheduled for repair.”
       {¶ 4} Plaintiff did not file a response.
       {¶ 5} 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. 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),
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Case No. 2006-03532-AD                   -4-               MEMORANDUM DECISION



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 that defendant had actual notice of the
pothole on SR 176 prior to the morning of October 7, 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
Case No. 2006-03532-AD                   -5-                MEMORANDUM DECISION



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, 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 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. 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 that her property damage was connected to any conduct under the control of
Case No. 2006-03532-AD                       -6-         MEMORANDUM DECISION




Case No. 2006-03532-AD                       -6-         MEMORANDUM DECISION



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




ROBYN SANDYS

      Plaintiff
Case No. 2006-03532-AD                     -7-               MEMORANDUM DECISION



        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-11200-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 defendant. Court costs are assessed against plaintiff.




                                                  ________________________________
                                                  MILES C. DURFEY
                                                  Clerk

Entry cc:

Robyn Sandys                                      Jerry Wray, Director
33315 Lake Road                                   Department of Transportation
Avon Lake, Ohio 44012                             1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
3/14
Filed 4/5/11
Sent to S.C. reporter 7/8/11
