[Cite as Tussing v. Ohio Dept. of Transp., Dist. 6, 2010-Ohio-6658.]

                                       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




JEFFREY A. TUSSING

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6

        Defendant

        Case No. 2010-04335-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Jeffrey A. Tussing, filed this action against defendant,
Department of Transportation (ODOT), contending that his Volkswagen 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. Specifically, plaintiff noted that the
left front wheel and tire on his vehicle were damaged as a result of striking a pothole “in
the right lane, driver’s side between the Georgesville Road and State Route 62 exits
near the Demorest Road overpass.” Plaintiff recalled that the damage incident occurred
on January 18, 2010 at approximately 6:45 p.m. Plaintiff filed this complaint seeking to
recover damages in the amount of $624.49, the total cost of replacement parts. 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 January 18, 2010 described occurrence.                     Defendant located the particular
pothole “between mileposts 4.97 to 3.99 on I-270 in Franklin County.” Defendant noted
that ODOT records show no reports of a pothole at the location indicated prior to
plaintiff’s damage event despite the fact “[t]his section of roadway had an average daily
traffic count between 58,510 and 80,130 vehicles.” 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 contended that plaintiff failed to
produce any evidence to establish the length of time the pothole between mileposts
4.97 and 3.99 on Interstate 270 existed prior to his January 18, 2010 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 “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 between mileposts
4.97 and 3.99 on Interstate 270 the last time that particular section of roadway was
inspected prior to January 18, 2010. The claim file is devoid of any inspection record.
Defendant asserted that, “[t]he roadway was in relatively good condition at the time of
plaintiff’s incident.” Defendant argued that plaintiff failed to prove his property damage
was attributable to any conduct on the part of ODOT personnel. Defendant stated that,
“[a] review of the six-month maintenance history (record submitted) for the area in
question reveals that four (4) 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 January 18, 2010 was September 17, 2009.
Defendant noted, “that if ODOT personnel had detected any defects they would have
been promptly scheduled for repair.”
      {¶ 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 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.
      {¶ 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 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.
      {¶ 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, 48 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; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
      {¶ 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 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.
       {¶ 9} 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.
       {¶ 10} 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
JEFFREY A. TUSSING

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6

        Defendant

         Case No. 2010-04335-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:

Jeffrey A. Tussing                                Jolene M. Molitoris, Director
10354 Lockbourne-Eastern Road                     Department of Transportation
Ashville, Ohio 43103                              1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
9/14
Filed 11/2/10
Sent to S.C. reporter 2/11/11
