[Cite as Patterson v. Ohio Dept. of Transp., Dist. 8, 2011-Ohio-4785.]



                                        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




PHILIP T. PATTERSON

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

        Defendant

        Case No. 2011-02221-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Philip Patterson, filed this action against defendant, Department
of Transportation (ODOT), contending that he suffered property damage as a proximate
result of negligence on the part of ODOT in maintaining a hazardous condition on
Interstate 71 northbound near the “State Route 134 overpass.” Plaintiff related that he
“hit a large pothole in the right hand lane * * * I had no chance to swerve.” Plaintiff
recalled that the described incident occurred on January 29, 2011 at approximately 5:45
p.m. Plaintiff requested damage recovery in the amount of $721.63, the stated total
cost of replacement parts. The filing fee was paid.
        {¶2}     Defendant determined that plaintiff’s incident occurred at milepost 52.71
on I-71 in Clinton County. Defendant denied liability based on the contention that no
ODOT personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s January 29, 2011 incident. Defendant related that, “[t]his section of roadway
has an average daily traffic count” of over 25,000 vehicles. Defendant asserted that
plaintiff did not offer any evidence to establish the length of time that the pothole existed
on I-71 northbound prior to his incident.
       {¶3}    Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Clinton 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 in the vicinity of plaintiff’s incident the last time that section of
roadway was inspected prior to January 29, 2011. The claim file is devoid of any
inspection record prepared by the Clinton County Manager. Defendant argued that
plaintiff failed to offer any evidence to prove that his property damage was attributable
to any conduct on the part of ODOT personnel. Defendant asserted that the roadway
was “in relatively good condition at the time of plaintiff’s incident.” Defendant stated
that, “[a] review of the six-month maintenance history [record submitted] for the area in
question reveals that three (3) Pothole Patching Operations were performed on I-71
around milepost 52.71.” However, the repairs for northbound I-71 were completed on
December 22, 2010.         Defendant noted, “that if ODOT personnel had detected any
potholes they would have been reported and promptly scheduled for repair.”
       {¶4}    Plaintiff filed a response asserting that the pothole he hit was somewhere
on I-71 northbound between exits 50 and 65. According to plaintiff, the “previously
stated location was a best guess of approximate location.”                  In addition, plaintiff
requested various documents in order to “prove that the pothole existed and was
patched after the January 29, 2011 incident.”1             The clerk notes that proof of the
existence of the pothole and the date it was patched are not the requisite factors for
plaintiff to prevail in this action.
       {¶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. 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


       1
          On May 3, 2011, defendant filed a reply to plaintiff’s response, which included additional
documents. However, proof of service upon plaintiff is not endorsed thereon or separately filed as
required by Civ.R. 5(D). Therefore, defendant’s filing is STRICKEN from the record.
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. This court, as trier of
fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14
Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477.
      {¶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 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. Plaintiff has not submitted any evidence to establish that ODOT
had actual notice of the pothole prior to plaintiff’s incident.   Therefore, in order to
recover plaintiff must produce evidence to prove constructive notice of the defect or
negligent maintenance.
      {¶9}    “[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.
       {¶10} 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.
       {¶11} In order for there to be constructive notice, plaintiff must show 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. 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. “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 pothole.
       {¶12} Plaintiff has not produced sufficient 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.
Therefore, defendant is not liable for any damage plaintiff may have suffered from the
pothole.
       {¶13} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained known hazardous roadway conditions. Plaintiff failed
to prove that his property damage was connected to any conduct under the control of
defendant, or that defendant was negligent in maintaining the roadway area, or that
there was any actionable 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.
Consequently, plaintiff’s claim is denied.
                                 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




PHILLIP T. PATTERSON

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

        Defendant

         Case No. 2011-02221-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:

Phillip T. Patterson                              Jerry Wray, Director
5930 Groff Court                                  Department of Transportation
Hilliard, Ohio 43026                              1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
5/6
Filed 6/14/11
Sent to S.C. reporter 9/21/11
