[Cite as Day v. Ohio Dept. of Transp., Dist. 8, 2011-Ohio-6906.]

                                       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
MARILYN DAY

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION-DISTRICT 8

        Defendant


Case No. 2011-05921-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Marilyn Day, filed this action against defendant, Department of
Transportation (ODOT), contending that she suffered property damage as a proximate
result of negligence on the part of ODOT in maintaining a hazardous condition on
Interstate 71 southbound in Cincinnati. Plaintiff related that she was traveling in the far
right lane “on Saturday, March 19th at approximately 12:30 AM” when she “hit a large
pothole that damaged the passenger side tires.” Plaintiff requested damage recovery in
the amount of $1,011.48, the stated total cost of replacement tires, related repair
expenses, and reimbursement of the filing fee. Plaintiff indicated that she received
insurance payments less the cost of her insurance deductible and a “tire betterment
adjustment.” As such, plaintiff’s damage claim for repair expenses is limited to her
insurance coverage deductible.1 The $25.00 filing fee was paid.
        {¶2}     Defendant determined that plaintiff’s incident occurred at milepost 17.79
on I-71 in Hamilton County. Defendant denied liability based on the contention that no
ODOT personnel had any knowledge of the particular damage-causing pothole prior to


        1
            R.C. 2743.02(D)
          “(D) Recoveries against the state shall be reduced by the aggregate of insurance proceeds,
disability award, or other collateral recovery received by the claimant. This division does not apply to civil
actions in the court of claims against a state university or college under the circumstances described in
section 3345.40 of the Revised Code. The collateral benefits provisions of division (B)(2) of that section
plaintiff’s March 19, 2011 incident. Defendant related that, “[t]his section of roadway
has an average daily traffic count” of over 125,000 vehicles. Defendant asserted that
plaintiff did not offer any evidence to establish the length of time that the pothole existed
on I-71 southbound 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 “Hamilton 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 March 19, 2011.            The claim file is devoid of any
inspection record prepared by the Hamilton County Manager. Defendant argued that
plaintiff has failed to offer any evidence to prove that her 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 at
southbound milepost 17.79.” (Emphasis added.) Defendant’s maintenance records
show those potholes were patched on February 16, 2011, March 9, 2011, and March
17, 2011. 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 incident actually happened on
Sunday, March 27th at 12:30 a.m. Plaintiff included a statement from her passenger
who also witnessed the property-damage event.
       {¶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

apply under those circumstances.”
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. A pothole patch which deteriorates in less than ten days is prima
facie evidence of negligent maintenance. Matala v. Ohio Department of Transportation,
Ct. of Cl. No. 2003-01270-AD, 2003-Ohio-2618; Schrock v. Ohio Dept. of Transp., Ct. of
Cl. No. 2005-02460-AD, 2005-Ohio-2479; Fisher v. Ohio Dept. of Transp., Ct. of Cl. No.
2007-04869-AD, 2007-Ohio-5288. See also Romes v. Ohio Dept. Of Transp., Ct. of Cl.
No. 2008-01286-AD, 2008-Ohio-4624. According to the investigation report submitted
by defendant, plaintiff’s vehicle was damaged by a pothole that had been patched as
recently as March 17, 2011, and the repair patch had failed by March 27, 2011.
      {¶9}   The fact the pothole plaintiff’s car struck deteriorated in a time frame of ten
days (or even slightly more than ten days) does not negate application of the standard
expressed in Matala, supra. See Marsh v. Ohio Dept. of Transp., 2006-01912-AD,
2006-Ohio-7204; Underwood v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2011-
03782-AD. Negligence in this action has been proven and defendant is liable for the
damage claimed, including filing fee costs.
                                 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
MARILYN DAY

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 8

        Defendant


Case No. 2011-05921-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 plaintiff in the amount of $525.00, which includes the filing fee. Court costs are
assessed against defendant.




                                           DANIEL R. BORCHERT
                                           Acting Clerk

Entry cc:

Marilyn Day                                Jerry Wray, Director
10240 Mt. Nebo Road                        Department of Transportation
North Bend, Ohio 45052                     1980 West Broad Street
                                           Columbus, Ohio 43223
8/1
Filed 8/10/11
Sent to S.C. reporter 1/3/12
