[Cite as Hafer v. Ohio Dept. of Transp., 2011-Ohio-5540.]



                                       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



BRUCE A. HAFER,                                             Case No. 2011-03952-AD

       Plaintiff,

       v.                                                   Acting Clerk Daniel R. Borchert

OHIO DEPT. OF TRANSPORTATION,

       Defendant.                                           MEMORANDUM DECISION



        {¶ 1} Plaintiff, Bruce Hafer, filed this action against defendant, Department of

Transportation (ODOT), contending that his vehicle was damaged on March 6, 2011, at

approximately 8:00 p.m. as a proximate result of negligence on the part of ODOT in

maintaining a hazardous condition on Interstate 71 South in Franklin County.

Specifically, plaintiff asserted that his left front wheel, tire, and tie rod end were

damaged as a result of striking a pothole which he stated was located “on the entrance

ramp to 270E.” In his complaint, plaintiff requested damage recovery of $501.71, which

represents $500.00 for his insurance coverage deductible and other related repair

expenses. The $25.00 filing fee was paid.

        {¶ 2} Defendant denied liability based on the contention that no ODOT

personnel had any knowledge of the particular damage-causing pothole prior to

plaintiff’s incident. Defendant advised that no complaints of a pothole were received at

the location on Interstate 71 described by plaintiff which “is near county milepost 10.48

or state milepost 101.55 on I-71 in Franklin County.” Defendant contended that plaintiff
did not produce any evidence to establish the length of time the pothole at milepost

101.55 on Interstate 71 existed prior to his March 5, 2011 damage occurrence.

      {¶ 3} Furthermore, defendant contended that plaintiff failed to offer evidence to

prove that ODOT negligently maintained the roadway. Defendant asserted that plaintiff

has not shown his property damage was attributable to conduct on the part of ODOT

personnel. Defendant explained that the ODOT “Franklin County Manager inspects all

state roadways within the county at least two times a month.” Apparently, no potholes

were discovered at milepost 101.55 on Interstate 71 the last time that particular section

of roadway was inspected prior to March 5, 2011. The claim file is devoid of any

inspection record.   Defendant did submit a copy of the “Maintenance History” for

Interstate 71 in Franklin County covering the dates from October 22, 2010, to March 6,

2011. This record shows that ODOT crews patched potholes in the area including

milepost 101.55 on November 17 and November 29, 2010, and on February 25, 2011.

      {¶ 4} On June 1, 2011, plaintiff filed a response arguing that defendant must

have had prior knowledge of the pothole inasmuch as the pothole had been repaired by

March 7, 2011.

      {¶ 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.

      {¶ 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. Despite the arguments raised by plaintiff in his response, there is

no evidence that defendant had actual notice of the pothole. Therefore, for the court to

find liability on a notice theory, evidence of constructive notice of the pothole must be

presented.

      {¶ 8} “[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.     “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. No. 92AP-1183. In order for there to be a finding of

constructive notice, plaintiff must prove, by a preponderance of the evidence, 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; Gelarden v. Ohio Dept. of Transp., Dist. 4,

Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.

      {¶ 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 pothole

appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.

2d 262, 577 N.E. 2d 458. No evidence was presented to establish the time that the

particular pothole was present. 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 failed to prove that defendant had constructive

notice of the pothole. 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.

Therefore, defendant is not liable for any damage that plaintiff may have suffered from

the roadway defect.
                               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




BRUCE A. HAFER,                                 Case No. 2011-03952-AD

      Plaintiff,

      v.                                        Acting Clerk Daniel R. Borchert

OHIO DEPT. OF TRANSPORTATION,

      Defendant.                                ENTRY OF ADMINISTRATIVE
                                                DETERMINATION



      {¶ 10} 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
                                                Acting Clerk

Entry cc:

Bruce A. Hafer                                  Jerry Wray, Director
546 Morrison Drive                              Department of Transportation
Ashville, Ohio 43103                            1980 West Broad Street
                                                Columbus, Ohio 43223




6/8
Filed 7/19/11
Sent to S.C. reporter 10/27/11
