[Cite as Hightower v. Ohio Dept. of Transp., 2011-Ohio-1414.]

                                                                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




GLENN HIGHTOWER

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant
       Case No. 2010-06036

Judge Clark B. Weaver Sr.

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT




        {¶ 1} On December 14, 2010, defendant, Ohio Department of Transportation
(ODOT), filed a motion for summary judgment pursuant to Civ.R. 56(B). Plaintiff has not
filed a memorandum in opposition.
        {¶ 2} In the complaint, plaintiff alleges that on February 22, 2010, his vehicle
was damaged when it struck a pothole on Interstate 70 (I-70) near Interstate 675.
Plaintiff claims that ODOT was negligent in its maintenance of I-70 and that ODOT’s
negligence proximately caused the damage to his vehicle.
        {¶ 3} Civ.R. 56(C) states, in part, as follows:
        {¶ 4} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
Case No. 2010-06036                        -2-                                 ENTRY

minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317. Defendant has the duty to maintain its highways
in a reasonably safe condition for the motoring public. Knickel v. Ohio Dept. of Transp.
(1976), 49 Ohio App.2d 335. However, defendant is not an insurer of the safety of its
highways.   See Kniskern v. Township of Somerford (1996), 112 Ohio App.3d 189;
Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App.3d 723.
      {¶ 5} Ohio law regarding ODOT’s liability for damage to vehicles caused by
potholes on state roadways was succinctly set forth by this court in Carson v. Ohio
Dept. of Transp., Ct. of Cl. No. 2010-01581-AD, 2010-Ohio-4584, as follows:
      {¶ 6} “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 potholes 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.” Id. at ¶9, citing Denis v. Ohio Dept. of
Transp. (Feb. 27, 1976), Ct. of Cl. No. 1975-0287-AD.
      {¶ 7} As noted above, plaintiff has failed to respond to defendant’s motion.
Thus, there is no evidence that defendant had actual notice of the pothole in question
prior to the February 22, 2010 incident.    Furthermore, in support of the motion for
summary judgment, defendant submitted the affidavit of Jim Shull, defendant’s
“Transportation manager 3.” Therein, Shull avers:
      {¶ 8} “3. ODOT      Clark   County   maintenance   personnel    were    continually
monitoring the area of Interstate Route 70 identified by the Plaintiff, and ODOT records
indicate that it was conducting frequent (at least biweekly) road inspections of this
portion of the highway.
Case No. 2010-06036                          -3-                                    ENTRY

        {¶ 9} “4. From January 4, 2010 to February 27, 2010 ODOT personnel patched
three pot holes.
        {¶ 10} “5. These pot holes only penetrated the surface course of the road.
Therefore, they were no deeper than 1 1/2 inches deep and approximately 1 x 1 feet
wide.
        {¶ 11} “6. ODOT maintenance personnel patched these pot holes immediately
after becoming aware of their existence.
        {¶ 12} “7. ODOT never received any reports from the Plaintiff or any other
persons traveling Interstate Rt. 70 of a large pot hole immediately before or after the
day Plaintiff claims he encountered this pot hole.”
        {¶ 13} The only permissible inference to draw from Shull’s uncontested affidavit
is that ODOT did not have constructive notice of the pothole in question and that
ODOT’s general maintenance practices with respect to the roadway were reasonable,
under the circumstances. See Herlihy v. Ohio Dept. of Transp. (July 19, 1999), Ct. of
Cl. No. 1999-07011-AD.
        {¶ 14} The Tenth District Court of Appeals has stated:
        {¶ 15} “The moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record that demonstrate
the absence of a genuine issue of fact on a material element of one or more of the
nonmoving party’s claims for relief. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. If
the moving party satisfies this initial burden by presenting or identifying appropriate
Civ.R. 56(C) evidence, the nonmoving party must then present similarly appropriate
evidence to rebut the motion with a showing that a genuine issue of material fact must
be preserved for trial. Norris v. Ohio Standard Oil Co. (1982), 70 Ohio St.2d 1,2. The
nonmoving party does not need to try the case at this juncture, but its burden is to
produce more than a scintilla of evidence in support of its claims.             McBroom v.
Columbia Gas of Ohio, Inc. (June 28, 2001), Franklin App. No. 00Ap-1110.” Nu-Trend
Case No. 2010-06036                       -4-                                   ENTRY

Homes, Inc. et al. v. Law Offices of DeLibera, Lyons & Bibbo et al., Franklin App. No.
01AP-1137, 2003-Ohio-1633, ¶17.
         {¶ 16} Plaintiff has not responded to defendant’s motion with any evidence to
rebut defendant’s motion or otherwise establish the existence of a genuine issue of
material fact.
         {¶ 17} Accordingly, defendant’s motion for summary judgment is GRANTED and
judgment is rendered for defendant. Court costs are assessed against plaintiff. The
clerk shall serve upon all parties notice of this judgment and its date of entry upon the
journal.




                                         _____________________________________
                                         CLARK B. WEAVER SR.
                                         Judge

cc:


John P. Reichley                            Glenn Hightower
Kristin S. Boggs                            3347 Bodman Drive
Assistant Attorneys General                 Columbus, Ohio 43219
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

LP/cmd
Filed March 1, 2011
To S.C. reporter March 22, 2011
