[Cite as Elko v. Ohio Dept. of Transp., 2010-Ohio-6626.]

                                       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




HOWARD ELKO

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant
Case No. 2010-06800-AD                    -2-                MEMORANDUM DECISION



Case No. 2010-06800-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



       {¶ 1} Plaintiff, Howard Elko, filed this action against defendant, Department of
Transportation (ODOT), contending his 2007 Kia Optima was damaged as a proximate
cause of negligence on the part of ODOT in maintaining a hazardous condition on State
Route 2 in Lorain County.      Plaintiff described the damage incident noting he was
traveling on State Route 2 near Baumhart Road when a piece “of the pavement came
loose from the road (and) it bent the left rear rim, blew a hole (through) the tire sidewall
(and) then hit my bumper” on the 2007 Kia Optima.             Plaintiff reported an ODOT
employee arrived at the scene and picked up the damage-causing piece of dislodged
pavement material. Plaintiff recalled his damage incident occurred on April 8, 2010 at
approximately 10:00 a.m. In his complaint, plaintiff requested damage recovery in the
amount of $1,092.60, the total stated cost of automotive repair and replacement parts.
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 defect prior to plaintiff’s
April 8, 2010 described occurrence. Defendant located the dislodged pavement and
resulting pothole at milepost 3.33 on SR 2 in Lorain County. Defendant explained that
ODOT records show no prior reports of a dislodged pavement pothole condition at the
location despite the fact that particular “section of roadway has an average daily traffic
Case No. 2010-06800-AD                      -3-                   MEMORANDUM DECISION



count between 30,540 and 33,740 vehicles.” Defendant argued that plaintiff did not
provide any evidence to establish the length of time the particular defect at milemarker
3.33 was present on the roadway prior to 7:00 p.m. on February 19, 2010. 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.”
       {¶ 3} Additionally, defendant contended that plaintiff did not offer evidence to
prove the roadway was negligently maintained. Defendant further contended plaintiff
failed to offer any evidence to prove his property damage was attributable to any
conduct attributable to ODOT.           Defendant advised the ODOT Lorain County
Transportation Manager, Tom Keys, “travels each state highway twice a month in Lorain
County and looks for potholes, low berms, and other safety hazards and records any
deficiencies he finds on the Road Inspection Reports” (copies submitted). According to
the submitted reports, ODOT employee Keys inspected State Route 2 on April 5, 2010
ad did not note any potholes or other defects. On April 8, 2010, Keys discovered the
“loose concrete” condition that damaged plaintiff’s vehicle.           However, the “loose
concrete” condition was not discovered by any ODOT personnel until after plaintiff’s
incident. The “loose concrete” was picked up and the resulting hole in the roadway was
immediately patched by ODOT personnel. Defendant asserted the pavement in the
vicinity of milepost 3.33 on State Route 2 was in good condition just three days prior to
plaintiff’s incident.   Defendant suggested the damage-causing “loose concrete”
condition was present for only a short time before plaintiff’s described damage
occurrence.
       {¶ 4} For plaintiff to prevail on a claim of negligence, he must prove, by a
Case No. 2010-06800-AD                   -4-              MEMORANDUM DECISION



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 defendant had actual notice of the
pavement condition on State Route 2 prior to the morning of April 8, 2010.
      {¶ 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} 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. No evidence has shown that ODOT had constructive notice of the defect.
      {¶ 9} 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 defect 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. The evidence available does not establish 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
pavement condition.
                      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




HOWARD ELKO

    Plaintiff

    v.

OHIO DEPT. OF TRANSPORTATION

    Defendant
Case No. 2010-06800-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:

Howard Elko                                       Jolene M. Molitoris, Director
1385 Troon Avenue                                 Department of Transportation
Brunswick, Ohio 44212                             1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
8/30
Filed 10/7/10
Sent to S.C. reporter 1/21/11
