[Cite as Grilliot v. Dept. of Transp., 2010-Ohio-6668.]

                                        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




ERIC LEE GRILLIOT

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-06541-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Eric Lee Grilliot, filed this action against defendant, Department of
Transportation (ODOT), contending his 1993 Chevrolet S10 truck was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 75 North in Hamilton County. Specifically, plaintiff related the tire
and rim on his truck were damaged when the vehicle struck a pothole “just before the I-
275 merge” on Interstate 75. Plaintiff filed this complaint requesting damage recovery in
the amount of $718.92, the total cost of replacement parts needed resulting from the
described incident. Plaintiff recalled that his property damage event occurred on April
10, 2010 at approximately 10:00 p.m. The filing fee was paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s April 10, 2010 described occurrence. Defendant located the particular pothole
“at milepost 16.77 on I-75 in Hamilton County” and advised that “ODOT did not receive
any reports of the pothole or have knowledge of the pothole prior to the (April 10, 2010)
Case No. 2006-03532-AD                     -2-                MEMORANDUM DECISION



incident.”    Defendant submitted a copy of “Maintenance Records” recording ODOT
maintenance activity on Interstate 75 from October 10, 2009 to April 10, 2010. The
submitted documents show ODOT personnel performed pothole patching operations in
the vicinity of plaintiff’s incident on March 2, 2010, March 3, 2010, and March 4, 2010.
       {¶ 3} Defendant denied ODOT negligently maintained Interstate 75 in Hamilton
County.      Defendant noted the ODOT “Hamilton County Manager inspects all state
roadways within the county at least two times a month.” Apparently no potholes were
discovered at milepost 16.77 on Interstate 75 North the last time that section of roadway
was inspected prior to April 10, 2010. The claim file is devoid of any copy of ODOT
Hamilton County inspection records.        Defendant asserted the particular location of
Interstate 75 is a well patrolled location and suggested the pothole plaintiff’s vehicle
struck “existed for only a short time before the incident.”
       {¶ 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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he 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.
Case No. 2006-03532-AD                    -3-                MEMORANDUM DECISION




Case No. 2006-03532-AD                    -3-                MEMORANDUM DECISION



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. Therefore, to find liability on a notice theory, evidence of constructive notice of
the pothole must be presented.
Case No. 2006-03532-AD                   -4-               MEMORANDUM DECISION



      {¶ 7} “[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. 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.
      {¶ 8} 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 length of 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. Plaintiff has failed to prove that defendant had
constructive notice of the pothole. 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
Case No. 2006-03532-AD                 -5-              MEMORANDUM DECISION




Case No. 2006-03532-AD                 -5-              MEMORANDUM DECISION



(1999), 99-07011-AD. Therefore, defendant is not liable for any damage that plaintiff
may have suffered from the roadway.




                             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




ERIC LEE GRILLIOT

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant
Case No. 2006-03532-AD                     -6-               MEMORANDUM DECISION



         Case No. 2010-06541-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:

Eric Lee Grilliot                                 Jolene M. Molitoris, Director
876 Hickory Lane                                  Department of Transportation
Troy, Ohio 45373                                  1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
9/16
Filed 11/2/10
Sent to S.C. reporter 2/11/11
