[Cite as Teach v. Ohio Dept. of Transp., 2009-Ohio-7195.]

                                      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




FRANK TEACH

        Plaintiff

        v.

THE OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2009-07741-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION




                                          FINDINGS OF FACT
        {¶ 1} 1)         On August 14, 2009, at approximately 3:00 p.m., plaintiff, Frank
Teach, was traveling south on US 23 in Marion County, when his 1993 Ford F-150 truck
struck a pothole causing substantial damage to the vehicle.            Plaintiff located the
damage-causing pothole “on the 1st bridge, curb lane (might be 2nd or 3rd bridge)” on
US Route 23 South from Marion-Williamsport Road.
        {¶ 2} 2)         Plaintiff asserted that the damage to his truck was proximately
caused by negligence on the part of defendant, Department of Transportation (ODOT),
in failing to maintain the roadway free of defects such as potholes. Plaintiff filed this
complaint seeking to recover $465.54, the cost of replacement parts and repair
expenses he incurred resulting from the August 14, 2009 incident. The filing fee was
paid.
        {¶ 3} 3)         Defendant denied liability in this matter contending that no ODOT
personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s August 14, 2009 incident. Defendant pointed out that ODOT records show no
calls or complaints were received before August 14, 2009 regarding the pothole which
defendant located “at milepost 11.14 on US 23 in Marion County.” Defendant argued
that plaintiff has failed to produce any evidence to establish the length of time the
pothole existed at milepost 11.14 prior to his property damage occurrence. Defendant
suggested that “it is likely the pothole existed for only a short time before the incident.”
Defendant explained that the ODOT “Marion County Manager inspects all state
roadways within the county at least two times a month.” Apparently, no potholes were
discovered at milepost 11.14 on US Route 23 the last time that section of roadway was
inspected before August 14, 2009. ODOT maintenance records note potholes were
repaired in the vicinity of plaintiff’s incident on March 5, 2009.
       {¶ 4} 4)      Plaintiff filed a response reporting that he attempted to locate the
particular damage-causing pothole when he drove on US Route 23 on November 2,
2009. Plaintiff did not produce any evidence to establish the length of time the pothole
was present on the roadway prior to 3:00 p.m. on August 14, 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. 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.” 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} Ordinarily, in a claim involving roadway defects, plaintiff must prove that
either: 1) defendant had actual or constructive notice of the defective condition 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.
      {¶ 9} Plaintiff has not produced sufficient evidence to indicate the length of time
that the particular pothole was present on the roadway prior to the incident forming the
basis of this claim. Plaintiff has not shown that 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 that
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 that 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. 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.
      {¶ 10} Plaintiff has not proven, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to him or that his injury was proximately
caused by defendant’s negligence. Plaintiff failed to show that the damage-causing
condition was created by conduct under the control of defendant, or negligent
maintenance 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




FRANK TEACH

      Plaintiff

      v.

THE OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2009-07741-AD

Clerk Miles C. Durfey


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.
                                ________________________________
                                MILES C. DURFEY
                                Clerk

Entry cc:

Frank Teach                     Jolene M. Molitoris, Director
27 W. Southington Avenue        Department of Transportation
Worthington, Ohio 43085         1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
12/1
Filed 12/23/09
Sent to S.C. reporter 4/16/10
