[Cite as Butler v. Ohio Dept. of Transp., 2011-Ohio-2126.]

                                       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




JAMES E. BUTLER, SR.

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

Case No. 2010-08314-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, James E. Butler, Sr., filed this action against defendant,
Department of Transportation (ODOT), contending that his 2008 Kia Sedona was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on Interstate 70 East in Franklin County. Plaintiff noted the tire and
rim on his van were damaged when the vehicle struck a pothole at “approximately 93 ½
mile marker at Wilson Road exit.” Plaintiff recalled the damage incident occurred on
May 6, 2010 at approximately 11:55 p.m. In his complaint, plaintiff requested damages
in the amount of $310.57, his out-of-pocket expense incurred for automotive repair. 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 May 6, 2010 described occurrence. Defendant located the particular pothole
“between county mileposts 7.5 to 8.0 or state mileposts 93.50 and 94.00 in Franklin
County as plaintiff has stated.”            Defendant explained that ODOT records show no
reports of a pothole at the location indicated were recorded prior to plaintiff’s damage
event.     Defendant related that ODOT received thirteen complaints of potholes on
Interstate 70 (during March, April and May) “but none of them were in the same location
as plaintiff’s.” Defendant noted that the particular section of roadway, “has an average
daily traffic count between 105,660 and 132,380 vehicles,” yet no prior complaints were
received regarding a pothole between milepost 93.50 and 94.00 on Interstate 70.
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
asserted that plaintiff failed to offer any evidence to prove his property damage was
attributable to ODOT personnel. Defendant contended that plaintiff failed to prove his
property damage was proximately caused by negligent maintenance on the part of
ODOT.      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
93.50 and 94.00 on Interstate 70 the last time that section of roadway was inspected
before May 6, 2010. The claim file is devoid of any inspection record.
         {¶ 3} 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 six (6) pothole patching operations were conducted in the general vicinity of
plaintiff’s incident (on eastbound I-70).” The last time pothole patching operations were
conducted on the eastbound lanes of Interstate 70 in the vicinity of plaintiff’s May 6,
2010 incident was on March 29, 2010. Defendant’s evidence shows ODOT personnel
patched potholes in the westbound lanes of Interstate 70 between milepost 99.00 and
92.00 on May 6, 2010, the day of plaintiff’s incident. 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.
      {¶ 7} 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.
      {¶ 8} Evidence is available to establish the particular damage-causing pothole
was present on the roadway prior to 1:00 p.m. on May 2, 2010 (See 2010-07938-AD).
This evidence is sufficient to base a finding of constructive notice.           To prove
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, 31 Ohio Misc. 2d at 4, 31 OBR 64, 507 N.E. 2d 1179.             “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. “[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. Constructive notice
of roadway potholes has been determined in multiple claims involving less than a
twenty-four hour time frame.    See McGuire v. Ohio Department of Transportation
(2002), 2001-08722-AD v. Ohio Department of Transportation (2002), 2001-08722-AD;
Piscioneri v. Ohio Dept. of Transportation, District 12; Ct. of Cl. No. 2002-10836-AD,
2003-Ohio-2173, jud; Kill v. Ohio Department of Transportation, Ct. of Cl. No. 2003-
01512-AD, 2003-Ohio-2620, jud; Zeigler v. Department of Transportation, Ct. of Cl. No.
2003-01652-AD, 2003-Ohio-2625; Sheaks v. Ohio Department of Transportation, Ct. of
Cl. No. 2003-02179-AD, 2003-Ohio-2176, jud.
      {¶ 9} However, in the matter of Pompignano v. Ohio Dept. of Transp., Ct. of Cl.
No. 2005-02117-AD, jud; 2005-Ohio-3976, in a Motion for Court Review, the court
concluded in reversing a determination by the Clerk that thirteen hours constructive
notice of a defect is insufficient notice to invoke liability on ODOT.    The court, in
reversing the finding of constructive notice, quoted and adopted ODOT’s argument: “It
is inappropriate that ODOT be held negligent for not patrolling every square mile of
roadway every twelve hours. Such a ruling is against all case law created outside the
limited arena of these administrative decisions.” (Defendant’s motion for court review,
page 7.) In its reversal order, the court also recognized a constructive notice standard
involving down signage. The court noted in finding, “that evidence of a stop sign being
down for less than 24 hours was not enough time to impute constructive notice of its
condition to ODOT.” See Cushman v. Ohio Dept. of Transp. (1995), 91-11591; affirmed
(March 14, 1996), Franklin App. No. 95AP107-8844. The court, in the instant claim,
determines constructive notice of the pothole was imputed considering the existing
evidence establishing the pothole was present on the roadway for more than one
hundred seven hours (four working days) before plaintiff’s damage occurrence.
Furthermore, the fact defendant’s personnel were in the immediate proximity of the
damage-causing pothole the day of the incident coupled with the evidence the pothole
was present on May 2, 2010 is sufficient to invoke liability on the part of ODOT.
Weitzman v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-07942-AD: affirmed (April 8,
2009), 2008-Ohio-7129; Stoller v. Ohio Dept of Transp., Ct. of Cl. No. 2010-03177-AD,
2010-Ohio-4960. Defendant is liable to plaintiff in the amount claimed, $310.57, plus
the $25.00 filing fee which may be reimbursed as compensable costs pursuant to R.C.
2335.19. See 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




JAMES E. BUTLER, SR.

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

Case No. 2010-08314-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 plaintiff in the amount of $335.57, which includes the filing fee. Court costs are
assessed against defendant.




                                DANIEL R. BORCHERT
                                Deputy Clerk

Entry cc:

James E. Butler, Sr.            Jerry Wray, Director
P.O. Box 82                     Department of Transportation
West Jefferson, Ohio 43162      1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
1/26
Filed 2/16/11
Sent to S.C. reporter 4/29/11
