[Cite as Howard v. Ohio Dept. of Transp., 2011-Ohio-6961.]




                                      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




JACK HOWARD

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2011-07443-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, Jack Howard, filed this claim stating that on April 20, 2011, at
approximately 9:30 p.m., he was “traveling north on State Route 7, in the right hand
lane, just before Route 213, between 33 & 34 mile marker” when he crossed a concrete
bridge. Plaintiff explained that he felt an impact which “broke my driver’s side leaf
spring and on the exit of the bridge the broken leaf spring hit my air bag and popped it,”
which almost caused him to lose control of his vehicle.         Plaintiff asserted that the
damage to his car was proximately caused by negligence on the part of defendant, Ohio
Department of Transportation (ODOT), in failing to adequately maintain the roadway
free of defects. Plaintiff filed this complaint seeking to recover $735.29, the stated cost
of a front spring and other related automotive repairs. The filing fee was paid.
        {¶2}    According to an email submitted with the complaint, plaintiff notified ODOT
of the damage event on April 23, 2011. Plaintiff also submitted photographs taken April
21, 2011, depicting the approach to and exit from the concrete bridge including views of
the expansion joint and the adjacent asphalt roadway. Based upon a review of the
photographs, it appears that the asphalt roadway on either side of the concrete bridge
had previously deteriorated and been repaired with pothole patching materials. The
area of roadway patching was adjacent to both expansion joints and spanned the entire
width of the roadway.
       {¶3}      Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular damage-causing condition prior to the
April 20, 2011 incident.           Defendant noted that plaintiff did not explain whether his
damage was caused by a pothole or an expansion joint. Defendant further noted that
ODOT records show no prior calls or complaints were received about the roadway
condition which defendant located “at approximately milepost 33.69 on SR 7 in
Jefferson County.” Defendant asserted that plaintiff did not produce any evidence to
establish the length of time the problem on the bridge existed before April 20, 2011, and
suggested that “it is likely the potholes by the bridge joints existed for only a short time
before the incident.” Defendant explained that the ODOT “Jefferson County Manager
inspects all state roadways within the county at least two times a month.” Apparently,
no defects were discovered near milepost 33.69 on State Route 7 the last time that
section of roadway was inspected prior to April 20, 2011. Defendant stated that, “[a]
review of the six-month maintenance history [record submitted] also reveals that general
maintenance and inspection is conducted to ensure a properly maintained roadway.”
       {¶4}      Defendant’s maintenance records for State Route 7 verify that at least
seven repairs in the vicinity of plaintiff’s incident took place from December 2010
through April 2011. In addition, ODOT crews patched potholes at milepost 33.00 on
April 13, 2011.1
       {¶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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he suffered a loss

       1
           It is unclear from the investigation report whether this repair coincides with the area of plaintiff’s
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.
       {¶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.
       {¶8}     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.
       {¶9}     The trier of fact notes that based upon the evidence presented, the April
21, 2011 photographs taken by plaintiff essentially reflect the roadway condition that
plaintiff would have encountered on April 20, 2011.       Upon review, the photographs


damage event.
submitted by plaintiff show the adjoining surfaces at the entrance and exit to the bridge
to be relatively level and the patching material appears to be intact, so as to provide
reasonably safe access over the bridge for motorists.
      {¶10} In this case, defendant’s “Maintenance History” reflects pothole repairs
were made in the vicinity of plaintiff’s incident on April 13, 2011.        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.
However, plaintiff has failed to prove that the damage to his vehicle was caused by a
pothole that had been previously patched or that the patching material used on the
roadway was subject to rapid deterioration. 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.-4830.
      {¶11} The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to
believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court does not find plaintiff’s
assertions persuasive that the roadway was negligently maintained. Conversely, the
trier of fact finds defendant’s assertions persuasive in regard to the contentions that the
roadway was adequately maintained.




                               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
JACK HOWARD

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-07443-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:

Jack Howard                                       Jerry Wray, Director
42944 Hammond School Road                         Department of Transportation
Wellsville, Ohio 43960                            1980 West Broad Street
                                                  Columbus, Ohio 43223
9/1
Filed 9/13/11
Sent to S.C. reporter 1/27/12
