[Cite as Mackey v. Dept. of Transp., 2011-Ohio-7023.]



                                      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




LINDA MACKEY

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant


Case No. 2011-09446-AD

Deputy Clerk Daniel R. Borchert


                                     MEMORANDUM DECISION

        {¶ 1} Plaintiff, Linda Mackey, filed this action against defendant, Department of
Transportation (ODOT), contending her car was damaged as a proximate result of
negligence on the part of ODOT personnel in maintaining a hazardous condition on
State Route 151 in Jefferson County. In her complaint, plaintiff stated that she hit two
potholes approximately fifteen feet apart and the impacts destroyed her tire. Plaintiff
recalled the particular damage incident occurred on March 23, 2011, at approximately
1:00 p.m. Plaintiff requested damages in the amount of $417.30, the total cost of a
replacement tire and rim. The $25.00 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 March 23, 2011 described occurrence. Defendant located the pothole “near
milepost 15.99 on SR 151 in Jefferson County.” Defendant explained ODOT “did not
receive any reports of the pothole or have knowledge of the pothole prior to the
incident.”    Defendant argued plaintiff did not provide any evidence to establish the
length of time the particular pothole was present on the roadway prior to March 23,
2011. Defendant suggested, “it is likely the pothole existed for only a short time before
the incident.”
       {¶ 3} Furthermore, defendant contended plaintiff did not offer any evidence to
prove the roadway was negligently maintained. Defendant related the ODOT “Jefferson
County Manager inspects all state roadways within the county at least two times a
month.” Apparently, no potholes were discovered in the vicinity of plaintiff’s incident on
SR 151 the last time that section of roadway was inspected prior to March 23, 2011.
Defendant’s maintenance records show potholes were patched in the northbound lanes
of SR 151 on March 21, 2011.
       {¶ 4} Plaintiff filed a response detailing the efforts she made to report the
potholes after her car was damaged.
       {¶ 5} 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
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.
       {¶ 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. There is no evidence defendant had actual notice of the pothole
on SR 151 prior to the afternoon of March 23, 2011.
      {¶ 8} 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.
      {¶ 9} 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.
      {¶ 10} 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.
      {¶ 11} Plaintiff has not produced sufficient evidence to infer 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.
Plaintiff has failed to introduce sufficient evidence to prove defendant maintained a
known hazardous roadway condition.      Plaintiff has failed to prove that her property
damage was connected to any conduct under the control of defendant, defendant was
negligent in maintaining the roadway area, or that there was any 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.
                                 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




LINDA MACKEY

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant


Case No. 2011-09446-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:
Linda Mackey                                      Jerry Wray, Director
866 Efts Lane                                     Department of Transportation
Wintersville, Ohio 43953                          1980 West Broad Street
                                                  Columbus, Ohio 43223

10/12
Filed 10/18/11
Sent to S.C. reporter 3/13/12
