[Cite as Wakley v. Dept. of Transp., 2010-Ohio-2180.]

                                       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




MICHAEL M. WAKLEY

       Plaintiff

       and

DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2009-04254-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       On April 12, 2009, at approximately 1:15 a.m., plaintiff, Michael M.
Wakley, was traveling south on Interstate 75 about two miles before the St. Bernard Exit
in Hamilton County, when his 2001 Chevrolet Impala struck a pothole causing tire and
rim damage to the vehicle.
        {¶ 2} 2)       Plaintiff asserted the damage to his car was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in failing to
maintain the roadway free of hazardous defects such as the pothole on Interstate 75.
Plaintiff filed this complaint seeking to recover $602.36, the complete cost of automotive
repair resulting from the April 12, 2009 incident. The filing fee was paid.
        {¶ 3} 3)       Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular damage-causing pothole prior to the
April 12, 2009 property damage occurrence. Defendant located the pothole at some
point between milepost 8.00 to 8.50 on Interstate 75 in Hamilton County. Defendant
explained ODOT records show no reports of a pothole between milepost 8.00 to 8.50
were received prior to April 12, 2009. Defendant argued plaintiff did not provide any
evidence to establish the length of time the particular pothole was present on the
roadway prior to April 12, 2009. Defendant suggested “it is likely the pothole existed for
only a short time before the incident.”
       {¶ 4} 4)    Furthermore, defendant contended plaintiff did not offer any evidence
to prove the roadway was negligently maintained.          Defendant related the ODOT
“Hamilton County Manager inspects all state roadways within the county at least two
times a month.” Apparently no potholes were discovered between mileposts 8.00 and
8.50 on Interstate 75 the last time that section of roadway was inspected prior to April
12, 2009. Defendant’s maintenance records show that potholes were patched in the
vicinity of plaintiff’s incident on March 9, 2009, March 10, 2009, and March 13, 2009.
                                CONCLUSIONS OF LAW
       {¶ 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. 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 any suit involving injury 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. Plaintiff has not produced any evidence to indicate the length of
time the pothole was present on the roadway prior to the incident forming the basis of
this claim. No evidence has been submitted to show defendant had actual notice of the
pothole.    Additionally, 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
pothole appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458. There is no indication defendant had constructive
notice of the pothole. Size of the defect (pothole) 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.
      {¶ 9} Plaintiff has not produced any 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 not proven, by a preponderance of the evidence, that defendant failed to discharge
a duty owed to him, or that his property damage was proximately caused by defendant’s
negligence. Plaintiff has failed to show the damage-causing pothole was connected to
any conduct under the control of defendant 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




MICHAEL M. WAKLEY

      Plaintiff

      v.

DEPT. OF TRANSPORTATION

      Defendant

      Case No. 2009-04254-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:

Michael M. Wakley                               Jolene M. Molitoris, Director
611 Sonoma Valley Court                         Department of Transportation
Apt. 7                                          1980 West Broad Street
Crestview Hills, Kentucky 41017                 Columbus, Ohio 43223
RDK/laa
2/3
Filed 2/18/10
Sent to S.C. reporter 5/14/10
