[Cite as Quaynor v. Ohio Dept. of Transp., 2011-Ohio-4584.]



                                      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




LAURA QUAYNOR, et al.

       Plaintiffs

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-01992-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1} Plaintiffs, Laura and Samuel Quaynor, filed this action against defendant,
Department of Transportation (ODOT), contending that they suffered property damage
as a proximate result of negligent maintenance of a state roadway on the part of ODOT.
Plaintiffs related that they were traveling on Interstate 71 northbound when “we hit a
pothole approximately 24 inches in diameter in the middle lane north of exit 5.” Plaintiffs
recalled that the described incident occurred on December 27, 2010 at approximately
11:30 a.m. Plaintiffs requested damage recovery in the amount of $864.90, the stated
total cost of replacement parts and reimbursement for the $25.00 filing fee. The filing
fee was paid.
        {¶2} Defendant determined that plaintiffs’ incident occurred between mileposts
5.3 and 5.5 on I-71 in Hamilton County. Defendant denied liability based on the
contention that no ODOT personnel had any knowledge of the particular damage-
causing pothole prior to plaintiffs’ December 27, 2010 incident. Defendant related that,
“[t]his section of roadway has an average daily traffic count” of over 130,000 vehicles.
Defendant asserted that plaintiffs did not offer any evidence to establish the length of
time that any pothole existed in the vicinity of milepost 5.3 to 5.5 on I-71 prior to this
incident.   Defendant denied receiving any complaints of potholes in the vicinity of
plaintiffs’ incident.


       {¶3} Additionally, defendant contended that plaintiffs did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Hamilton 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 plaintiffs’ incident the last time that section of
roadway was inspected prior to December 27, 2010. Defendant argued that plaintiffs
have failed to offer any evidence to prove that their property damage was attributable to
any conduct on the part of ODOT personnel. Defendant asserted that the roadway was
“in relatively good condition at the time of [plaintiffs’] incident.” Defendant stated that,
“[a] review of the six-month maintenance history [record submitted] for the area in
question reveals that one (1) pothole patching operation was performed on I-71 at
milepost 5.2 to 17.1.”    However, this operation was completed nearly four months
before plaintiffs’ incident. Defendant noted, “that if ODOT personnel had detected any
potholes they would have been reported and promptly scheduled for repair.”
       {¶4} On May 12, 2011, plaintiffs filed a response wherein they essentially
reiterated the allegations contained in the complaint.
       {¶5} For plaintiffs to prevail on a claim of negligence, they must prove, by a
preponderance of the evidence, that defendant owed them a duty, that it breached that
duty, and that the breach proximately caused their 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. Plaintiffs
have the burden of proving, by a preponderance of the evidence, that they 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. This court, as trier of
fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14
Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477.
      {¶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, plaintiffs
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, plaintiffs 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. Plaintiffs have not submitted any evidence to establish that ODOT
had actual notice of the pothole prior to plaintiffs’ incident.   Therefore, in order to
recover plaintiffs must produce evidence to prove constructive notice of the defect or
negligent maintenance.
      {¶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.
      {¶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 the defective
condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d
262, 577 N.E. 2d 458.
       {¶11} In order for there to be constructive notice, plaintiffs 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. “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.
       {¶12} Plaintiffs have not produced sufficient 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 plaintiffs may have suffered from the
pothole. In the instant claim, plaintiffs have failed to introduce sufficient evidence to
prove that defendant maintained known hazardous roadway conditions. Plaintiffs failed
to prove that their 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, plaintiffs’ 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




LAURA QUAYNOR, et al.

        Plaintiffs

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-01992-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 plaintiffs.



                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Laura Quaynor                                     Jerry Wray, Director
Samuel Quaynor                                    Department of Transportation
11 Linnet Loop                                    1980 West Broad Street
North Augusta, South Carolina 29841               Columbus, Ohio 43223

SJM/laa
5/10
Filed 6/1/11
Sent to S.C. reporter 9/12/11
