[Cite as Steele v. Ohio Dept. of Transp., 2011-Ohio-6581.]



                                       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

PAUL STEELE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2011-04886-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Paul Steele, filed this action against defendant, Department of
Transportation (ODOT), contending that his vehicle was damaged as a proximate result
of negligence on the part of ODOT in maintaining a hazardous condition on Interstate
71 South in Delaware County. Specifically, plaintiff asserted that his passenger side
wheels were damaged as a result of striking a pothole on I-71 southbound. In his
complaint, plaintiff requested damage recovery of $448.54, which represents the cost of
two replacement wheels and other related repair expenses. The $25.00 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 incident which defendant stated occurred on March 4, 2011. Defendant notes
that plaintiff’s incident occurred “near state milepost 130.64 or county milepost 9.67 on
I-71 in Delaware County.” Defendant contended that plaintiff did not produce any
evidence to establish the length of time the pothole at milepost 130.64 on Interstate 71
existed prior to his March 4, 2011 damage occurrence.
        {¶3}     Furthermore, defendant contended that plaintiff failed to offer evidence to
prove that ODOT negligently maintained the roadway. Defendant asserted that plaintiff
has not shown his property damage was attributable to conduct on the part of ODOT
personnel. Defendant explained that the ODOT “Delaware 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 at milepost 130.64
on Interstate 71 the last time that particular section of roadway was inspected prior to
March 4, 2011. The claim file is devoid of any inspection record. Defendant did submit
a copy of the “Maintenance History” for Interstate 71 in Delaware County covering the
dates from September 1, 2010, to March 4, 2011. This record shows that ODOT crews
patched potholes only in the northbound lanes of I-71 during that time period.
      {¶4}   Nonetheless, defendant admitted having notice of the pothole at milepost
130.64 two weeks before plaintiff’s incident and advised that the pothole on Interstate
71 had been repaired. According to the documents submitted by defendant, the pothole
was reported to ODOT on February 18, 2011, and the repair was completed on
February 25, 2011. This pothole patching operation does not appear on defendant’s
Maintenance History listing.
      {¶5}   Plaintiff did not file a response.
      {¶6}   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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he suffered a loss
and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio
State University (1977), 76-0368-AD. 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.
      {¶7}   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.
      {¶8}    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 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.
      {¶9}    “[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. No. 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; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
      {¶10} 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 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.
      {¶11} 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.
      {¶12} In this case, upon review, sufficient evidence has been produced to infer
that the roadway was negligently maintained. Denis. The damage-causing defect in
the instant action appears to have been formed when an existing patch from February
25, 2011, deteriorated. A patch that deteriorates in less than ten days is prima facie
evidence of negligent maintenance. See 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.
      {¶13} According to the investigation report submitted by defendant, plaintiff’s
vehicle was damaged by a pothole that had been patched as recently as February 25,
2011, and the repair patch had failed by March 4, 2011. The fact that the pothole
plaintiff’s car struck deteriorated in a time frame of less than seven days warrants
application of the standard expressed in Matala; Fisher v. Ohio Dept. of Transp., Ct. of
Cl. No. 2007-04869-AD, 2007-Ohio-5288. See also Romes v. Ohio Dept. Of Transp.,
Ct. of Cl. No. 2008-01286-AD, 2008-Ohio-4624. Negligence in this action has been
proven and defendant is liable to plaintiff for all damages claimed, $448.54, plus the
$25.00 filing fee costs. 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
PAUL STEELE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2011-04886-AD

Acting 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 plaintiff in the amount of $473.54, which includes the filing fee. Court costs are
assessed against defendant.




                                          DANIEL R. BORCHERT
                                          Acting Clerk

Entry cc:

Paul Steele                               Jerry Wray, Director
530 Dawsett Avenue                        Department of Transportation
Galion, Ohio 44833                        1980 West Broad Street
                                          Columbus, Ohio 43223


7/13
Filed 8/1/11
Sent to S.C. reporter 12/20/11
