[Cite as Montemarano v. Ohio Dept. of Transp., Dist. 6, 2011-Ohio-5115.]



                                      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




SUSAN MONTEMARANO

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6

       Defendant

        Case No. 2011-01925-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶1}    In her complaint, plaintiff, Susan Montemarano, stated that on January 14,
2011, at approximately 6:00 a.m., she was traveling west on Dempsey Road when “as
(I) turned right on to Westerville Rd. I hit a pothole. By the time I reached 270 the tire
was flat.”
        {¶2}    Plaintiff contends her property damage was proximately caused by
negligence on the part of defendant, Department of Transportation (DOT), in failing to
maintain the roadway. Consequently, plaintiff filed this complaint seeking to recover
$268.48, the cost of replacement parts and associated repair expenses. The filing fee
was paid.
        {¶3}    Defendant denies liability in this matter based on the contention that no
DOT personnel had any knowledge of the pothole prior to plaintiff’s property-damage
event. Defendant states the pothole was located at milepost 25.60 on SR 3 in Franklin
County.      Defendant denies receiving any previous reports of the damage-causing
pothole which plaintiff encountered. Defendant suggests, “it is more likely than not that
the pothole existed in that location for only a relatively short amount of time before
plaintiff’s incident.”
        {¶4}    Furthermore, defendant asserts plaintiff has not produced evidence to
show DOT negligently maintained the roadway.           Defendant explains that the DOT
Franklin 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 at milepost 25.60 on SR 3 in the vicinity of plaintiff’s incident
the last time this roadway was inspected prior to January 14, 2011. Defendant stated
that “[a] review of the six-month maintenance history [record submitted] for the area in
question reveals that four (4) pothole patching operation were conducted in the same
location as plaintiff’s incident. (Emphasis added.) Defendant maintains that “if ODOT
personnel had detected any defects they would have been promptly scheduled for
repair.”
        {¶5}    Plaintiff filed a response wherein she alleged that the pothole she hit had
been previously repaired, the repair had deteriorated, and that several other persons
had also sustained damage to their vehicles from hitting the same pothole.
                                   CONCLUSIONS OF LAW
        {¶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 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.
        {¶8}    To prove a breach of duty by defendant to maintain the highways plaintiff
must establish, by a preponderance of the evidence, that DOT 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. No evidence has shown that defendant had actual notice of the
damage-causing pothole.
       {¶9}   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
defective condition (pothole) developed. Spires v. Ohio Highway Department (1988), 61
Ohio Misc. 2d 262, 577 N.E. 2d 458. 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. There is insufficient evidence to show defendant had
constructive notice of the pothole.
       {¶10} Plaintiff has not produced any evidence other than her own assertions 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. 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. Although defendant
was patching potholes on SR 3 as recently as January 10, 2011, such patching
operation extended from milepost 21.20 to 26.10. Defendant did not indicate that
patching was performed at the specific location of plaintiff’s incident. See Pinnick v.
Ohio Dept. of Transp., 2010-12761-AD.       Therefore, defendant is not liable for any
damage plaintiff may have suffered from the pothole.
       {¶11} Plaintiff has not shown, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to her or that her property damage was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing pothole was connected to any conduct under the control of defendant or that
there was any 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.
                                 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




SUSAN MONTEMARANO

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6

        Defendant

         Case No. 2011-01925-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:

Susan Montemarano                                 Jerry Wray, Director
1346 Spring Brook Court                           Department of Transportation
Westerville, Ohio 43081                           1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
5/6
Filed 6/27/11
Sent to S.C. reporter 10/4/11
