[Cite as Mitchell v. Ohio Dept. of Transp., 2011-Ohio-6907.]




                                       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
BERTHA L. MITCHELL

        Plaintiff

        v.

DEPARTMENT OF TRANSPORT OHIO

        Defendant


Case No. 2011-05963-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Bertha Mitchell, filed this action against defendant, Ohio
Department of Transportation (ODOT), contending that her 2003 Volkswagon Passat
was damaged as a proximate result of negligence on the part of ODOT in maintaining a
hazardous condition on Interstate 70 near Eaton, Ohio.          In her complaint, plaintiff
described the particular damage event noting that she struck a pothole that spanned
nearly the entire width of her lane of travel. Plaintiff recalled that the damage incident
occurred “on or about February 12, 2011, at 8:00 p.m.” Plaintiff seeks recovery of
damages in the amount of $405.56, the stated cost for two replacement tires. Payment
of the filing fee was waived.
        {¶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 February 12, 2011 incident. Upon investigation, defendant located plaintiff’s
incident “between mileposts 4.91 and 6.91 on I-70 in Preble County.” Defendant denied
receiving any prior calls or complaints about a pothole or potholes in the vicinity of that
location despite the fact that this section of roadway has an average daily traffic count of
over 14,000 vehicles. Defendant asserted that plaintiff did not offer any evidence to
establish the length of time that any pothole existed in the vicinity of her incident on I-70
prior to February 12, 2011. Defendant suggested that “it is likely the pothole existed for
only a short time before the 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 “Preble County Manager inspects all state roadways within the county at least
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 February 12, 2011.
The claim file is devoid of any inspection record. 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 stated that, “[a] review of the six-
month maintenance history [record submitted] also reveals that general maintenance
and inspection is conducted to ensure a properly maintained roadway.”
       {¶4}   Plaintiff filed a response stating that defendant should be held liable for
her damages because the potholes were located in the direct path of her vehicle which
she claims “places the road hazard in the right-of-way.” Plaintiff cites Harris v. Ohio
Dept. of Transp. (1994), 83 Ohio App.3d 125, 614 N.E.2d 779, for the proposition that
defendant may be held liable if a hazardous condition remains in the roadway and
jeopardizes the traveling public. The court notes that Harris is not applicable to the
circumstances in this case inasmuch as that case involved an embankment located in
the median off the traveled portion of the roadway. In addition, plaintiff maintains that
the sheer size of the pothole she struck was sufficient to provide constructive notice to
defendant.
       {¶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. 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 conditions or defects 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. There is no evidence that defendant had actual notice of the
pothole on I-70 prior to February 12, 2011.
      {¶8}    Therefore, to find liability, plaintiff must prove that ODOT had constructive
notice of the defect.    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 developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458.
      {¶9}    In order for there to be constructive notice, plaintiff must show 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 . Size of the defect 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. “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. 92AP-
1183.    Despite the arguments presented in her response, plaintiff has provided
insufficient evidence to prove that ODOT had constructive notice of the pothole.
        {¶10} 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.       Denis v. Department of Transportation
(1976), 75-0287-AD.       Plaintiff has not produced sufficient evidence to infer that
defendant, in a general sense, maintains its highways negligently or that defendant’s
acts caused the defective conditions. Herlihy v. Ohio Department of Transportation
(1999), 99-07011-AD. Therefore, defendant is not liable for any damage plaintiff may
have suffered from the pothole.
        {¶11} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained known hazardous roadway conditions. Plaintiff failed
to prove that her property damage was connected to any conduct under the control of
defendant, or that defendant was negligent in maintaining the roadway area, or that
there was any actionable 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.
Consequently, plaintiff’s claim is denied.
                               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
BERTHA L. MITCHELL

      Plaintiff

      v.

DEPARTMENT OF TRANSPORT OHIO

      Defendant


Case No. 2011-05963-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 defendant. Court costs are assessed against plaintiff.



                                                ________________________________
                                                DANIEL R. BORCHERT
                                                Acting Clerk

Entry cc:
Bertha L. Mitchell             Jerry Wray, Director
305 Nelson Court               Department of Transportation
Champaign, Illinois 61820      1980 West Broad Street
                               Columbus, Ohio 43223

8/4
Filed 8/11/11
Sent to S.C. reporter 1/3/12
