[Cite as Hurley v. Dept. of Transp., 2011-Ohio-6879.]



                                       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




KIMBERLY S. HURLEY

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant


Case No. 2011-04983-AD

Acting Clerk Daniel R. Borchert


MEMORANDUM DECISION

        {¶1}     Plaintiff, Kimberly Hurley, filed this action against defendant, Department
of Transportation (ODOT), contending that her vehicle was damaged on March 13,
2011, at approximately 10:00 p.m as a proximate result of negligence on the part of
ODOT in maintaining a hazardous condition on Interstate 71.             Specifically, plaintiff
asserted that a wheel on her 2003 Cadillac Deville was damaged as a result of striking
a pothole on I-71 southbound. In her complaint, plaintiff requested damage recovery of
$230.05, which represents the cost of a replacement wheel. 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 incident. Defendant notes that plaintiff’s incident occurred “at state milemarker
176.92 or county milemarker 18.78 on I-71 in Richland County.” Defendant contended
that plaintiff did not produce any evidence to establish the length of time the pothole at
milepost 176.92 on Interstate 71 existed prior to her March 13, 2011 damage
occurrence.
      {¶3}    Furthermore, defendant contended that plaintiff failed to offer evidence to
prove that ODOT negligently maintained the roadway. Defendant asserted that plaintiff
has not shown her property damage was attributable to conduct on the part of ODOT
personnel. Defendant explained that the ODOT “Richland 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 at milepost 176.92
on Interstate 71 the last time that particular section of roadway was inspected prior to
March 13, 2011. The claim file is devoid of any inspection record. Defendant did
submit a copy of the “Maintenance History” for Interstate 71 in Richland County
covering the dates from September 1, 2010, to March 13, 2011. This record shows that
ODOT crews patched potholes in the vicinity of plaintiff’s incident on March 8, 2011.
      {¶4}    Plaintiff did not file a response.
      {¶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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that she suffered a loss
and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio
State University (1977), 76-0368-AD. 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 that defendant had actual notice of the
pothole.    Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the pothole must be presented.
      {¶8}    “[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, 47 O.O. 231, 105 N.E. 2d 429. “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. No. 92AP-1183. In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, that
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; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
      {¶9}    The trier of fact is precluded from making an inference of defendant’s
constructive notice, unless evidence is presented in respect to the time that the pothole
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458. No evidence was presented to establish the time that the
particular pothole was present. 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.
      {¶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 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.
       {¶11} In this case, defendant admitted patching potholes in the vicinity of
milepost 176.92 on I-71 southbound five days prior to plaintiff’s incident. A patch that
deteriorates in less than ten days is prima facie evidence of negligent maintenance.
See Matala v. Ohio Department of Transportation, 2003-01270-AD, 2003-Ohio-
2618;Schrock v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-02460-AD, 2005-Ohio-2479.
However, plaintiff has failed to prove that the pothole she struck had been previously
patched or that the patching material was subject to rapid deterioration. Plaintiff has not
proven negligent maintenance by providing evidence of multiple repairs. Plaintiff has
not produced any 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.
                                 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




KIMBERLY S. HURLEY

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-04983-AD

Acting 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
                                                  Acting Clerk

Entry cc:

Kimberly S. Hurley                                Jerry Wray, Director
350 W. Johnson                                    Department of Transportation
Upper Sandusky, Ohio 43351                        1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
7/21
Filed 8/9/11
Sent to S.C. reporter 1/3/12
