[Cite as Underwood v. Ohio Dept. of Transp., 2011-Ohio-5566.]



                                      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




MICHELLE UNDERWOOD,                                             Case No. 2011-04321-AD

       Plaintiff,

       v.                                                       Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

       Defendant.                                               MEMORANDUM DECISION




                                         FINDINGS OF FACT



        {¶ 1} In her complaint, plaintiff, Michelle Underwood, alleges that on January

25, 2011, at approximately 7:40 a.m., she was traveling south on Interstate 75,

“between Piqua & Troy” when her automobile struck a pothole in the roadway. The

pothole caused tire and rim damage to plaintiff’s vehicle.

        {¶ 2} Plaintiff filed this complaint seeking to recover $551.41, the cost of a

replacement tire and rim as well as related repair expenses resulting from the January

25, 2011 incident. Plaintiff implied she incurred these damages as a proximate result of

negligence on the part of defendant, Department of Transportation (“DOT”), in

maintaining the roadway. The $25.00 filing fee was paid.

        {¶ 3} Defendant located the pothole at milepost 78.50 on I-75 in Miami County.
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 25, 2011

described occurrence.          Defendant argued plaintiff did not provide any evidence to

establish the length of time the particular pothole was present on the roadway prior to

January 25, 2011. Defendant suggested, “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.”

        {¶ 4} Furthermore, defendant contended plaintiff did not offer any evidence to

prove the roadway was negligently maintained. Defendant related the ODOT “Miami

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 on I-75 the last time that section of

roadway was inspected prior to January 25, 2011. Defendant’s maintenance records

show potholes were patched in the specific location of plaintiff’s incident on December

26, 2010 and January 25, 2011.1 Defendant denied DOT employees were negligent in

regard to roadway maintenance.

        {¶ 5} Plaintiff did not file a response.

                                           CONCLUSIONS OF LAW

        {¶ 6} 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


        1
          Based on the statements made in the complaint, the trier of facts finds that, in all likelihood, this
pothole patching operation occurred as the result of one or more state troopers having notified defendant
of the pothole the morning of January 25, 2011.
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.

      {¶ 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} To prove a breach of duty by defendant to maintain the highways plaintiff

must establish, by a preponderance of the evidence, that DOT 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 defendant had actual notice of the pothole
on I-75 prior to the morning of January 25, 2011.

      {¶ 9} Therefore, to find liability plaintiff must prove 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 the

defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio

Misc. 2d 262, 577 N.E. 2d 458.

      {¶ 10} In order for there to be constructive notice, plaintiff must show 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. “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. There is insufficient evidence to show defendant had constructive notice of the

pothole.

      {¶ 11} Plaintiff has 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 plaintiff may have suffered from the
pothole.

       {¶ 12} 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

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




MICHELLE UNDERWOOD,                                     Case No. 2011-04321-AD

        Plaintiff,

        v.                                              Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

        Defendant.                                      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
                                                 Acting Clerk



Entry cc:

Michelle Underwood                               Jerry Wray, Director
1020 Park Avenue                                 Department of Transportation
Piqua, Ohio 45356                                1980 West Broad Street
                                                 Columbus, Ohio 43223

7/1
Filed 7/19/11
Sent to S.C. reporter 10/27/11
