[Cite as Pack v. Ohio Dept. of Transp., 2012-Ohio-3242.]



                                                           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




THOMAS M. PACK

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2012-01198-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT
        {¶1}     In his complaint, plaintiff, Thomas Pack, relates that on December 21,
2011, at approximately 6:13 p.m., he was “heading east on 40 to Route 310” when he
“hit a pothole in the road.” The impact damaged both passenger tires and bent the rims.
Plaintiff related that two other vehicles also sustained damage from the same pothole.
        {¶2}     Plaintiff filed this complaint seeking to recover $1,403.54, the estimated
cost of two replacement tires, wheels, and related repair expenses as well as
reimbursement of the filing fee. Plaintiff asserted he incurred these damages as a
proximate result of negligence on the part of defendant, Ohio Department of
Transportation (ODOT), in maintaining the roadway. The $25.00 filing fee was paid.
        {¶3}     Defendant located the pothole on US 40 at milepost 5.195 in Licking
County. According to defendant, no complaints regarding potholes near this location
were received, during the six months prior to plaintiff’s incident. 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 related that,
“[t]his section of roadway has an average daily traffic count” of over 7,900 vehicles.
Defendant asserted that plaintiff did not offer any evidence to establish the length of
time that the pothole existed on US 40 prior to his incident.
       {¶4}   Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant explained ODOT
employees conduct roadway inspections on all state roadways within the county on a
routine basis, “at least one to two times a month.” Defendant asserted that the roadway
was “in relatively good condition at the time of plaintiff’s incident.” Defendant denied
ODOT employees were negligent in regard to roadway maintenance.                Defendant
argued that plaintiff failed to offer any evidence to prove that his property damage was
attributable to any conduct on the part of ODOT personnel.
       {¶5}   Plaintiff did not file a response.
                                   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}   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. 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. 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. 92AP-1183. In order for there to be 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.
      {¶10} In another case filed with this court, plaintiff Tonda Meadows filed a
complaint stating that on December 1, 2011, while driving “eastbound on State Route
40, near the intersection of State Route 40 and State Route 310, I encountered a
pothole” and the impact damaged her tire and rim. The court finds that in all likelihood
plaintiff Pack struck the same pothole. Based upon plaintiff Meadows’ sworn statement
in Case No. 2012-02607, the court finds that ODOT had constructive notice of the
pothole plaintiff hit. Moreover, there is no evidence defendant performed any pothole
patching operations on US 40 in the six-month period prior to December 21, 2011.
      {¶11} Additionally, the trier of fact finds it is extremely unlikely periodic
inspection activity would not have discovered the damage-causing defect on US 40
eastbound near the intersection with SR 310 at some time between December 1 and
December 21, 2011. The credibility of witnesses and the weight attributable to their
testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.
2d 230, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is
free to believe or disbelieve, all or any part of each witness’s testimony. State v. Antill
(1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court does not find
defendant’s assertions persuasive that routine patrols were conducted or that the
roadway was adequately maintained. Indeed, the trier of fact finds that there is no
evidence that the roadway was routinely inspected or that the inspection was adequate.
Kornokovich v. Ohio Dept. Of Transp., Ct. Of Cl. No. 2009-05641-AD, 2009-Ohio-7123.
Conversely, the trier of fact finds the statements of plaintiffs Meadows and Pack
persuasive that the roadway was not adequately maintained.
       {¶12} Negligence in this action has been proven and defendant is liable to
plaintiff for all damages claimed, $1,403.54, plus the $25.00 filing fee costs. Bailey v.
Ohio Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E.
2d 990.
                                             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




THOMAS M. PACK

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2012-01198-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 plaintiff in the amount of $1,428.54, which includes the filing fee. Court costs are
assessed against defendant.




                                        DANIEL R. BORCHERT
                                        Deputy Clerk

Entry cc:

Thomas M. Pack                          Jerry Wray, Director
2670 Darby Creek Drive                  Department of Transportation
Grove City, Ohio 43123                  1980 West Broad Street
                                        Columbus, Ohio 43223
011
Filed 5/24/12
sent to S.C. Reporter 7/18/12
