David A. Frey, Plaintiff, v. Ohio Dept. of Transportation, District 8, Defendant.

No. 2010-10211-AD.Court of Claims of Ohio.
Filed March 4, 2011.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM DECISION {¶ 1} Plaintiff, David A. Frey, filed this action against defendant, Department of Transportation (ODOT), contending that his 1998 Audi-A6 Avant Quattro was damaged as a proximate cause of negligence on the part of ODOT in maintaining a hazardous condition on Interstate 75 South in Hamilton County. Specifically, plaintiff advised that the left front strut and left speed sensor on his car were damaged when the vehicle struck a large pothole near milepost 15.0. Plaintiff recalled that the described damage incident occurred on February 17, 2010 at approximately 3:45 p.m. Plaintiff requested damages in the amount of $583.90, the cost of replacement parts and repairing expenses he incurred resulting from the February 17, 2010 incident. Plaintiff had his automobile repaired in August 2010. The filing fee was paid.

{¶ 2} Defendant denied liability in this matter based on the contention that no ODOT personnel had any knowledge of the particular damage-causing pothole prior to plaintiffs February 17, 2010 described occurrence. Defendant located the particular pothole “at milepost 15.0 on I-75 in Hamilton County” and advised that “ODOT did not receive any reports of the pothole or have knowledge of the pothole prior to the

Page 2

(February 17, 2010) incident.” According to ODOT records, three complaints of potholes were received for Interstate 75 in Hamilton County for the period from August 17, 2009 to February 17, 2010. Defendant noted that none of the prior complaints “are in the same location as plaintiffs incident or at the same time frame as plaintiffs incident.” Defendant submitted a copy of “Maintenance Records” recording ODOT maintenance activity on Interstate 75 from August 17, 2009 to February 17, 2010. The submitted records show that ODOT patched potholes in the northbound lanes of Interstate 75 from milepost 0.0 to milepost 15.0 on February 11, 2010 and February 12, 2010.

{¶ 3} Defendant denied that ODOT negligently maintained Interstate 75 in Hamilton County. Defendant noted that the ODOT “Hamilton County Manager inspects all state roadways within the county at least two times a month.” Apparently no potholes were discovered at milepost 15.0 on Interstate 75 South the last time that section of roadway was inspected prior to February 17, 2010. The claim file is devoid of any copy of ODOT Hamilton County inspection records. Defendant asserted that the particular location of Interstate 75 is a well patrolled location and suggested that the pothole plaintiffs car struck “existed for only a short time before the incident.”

{¶ 4} 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 citin 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.

{¶ 5} Defendant has the duty to maintain its highways in a reasonably safe condition for the motoring public. Knickel v. Ohio Department of Transportation (1976),

Page 3

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. Se 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.

{¶ 6} 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. 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.

{¶ 7} “[Constructive 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, 48 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.

{¶ 8} 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 length of 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,

Page 4

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.

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.

Page 5

Entry cc:

David A. Frey 1477 Rugg Street Cincinnati, Ohio 45231

Jerry Wray, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223

Page 1