[Cite as Underwood v. Ohio Dept. of Transp., 2011-Ohio-5566.]
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
MICHELLE UNDERWOOD, Case No. 2011-04321-AD
Plaintiff,
v. Acting Clerk Daniel R. Borchert
OHIO DEPARTMENT OF TRANSPORTATION,
Defendant. MEMORANDUM DECISION
FINDINGS OF FACT
{¶ 1} In her complaint, plaintiff, Michelle Underwood, alleges that on January
25, 2011, at approximately 7:40 a.m., she was traveling south on Interstate 75,
“between Piqua & Troy” when her automobile struck a pothole in the roadway. The
pothole caused tire and rim damage to plaintiff’s vehicle.
{¶ 2} Plaintiff filed this complaint seeking to recover $551.41, the cost of a
replacement tire and rim as well as related repair expenses resulting from the January
25, 2011 incident. Plaintiff implied she incurred these damages as a proximate result of
negligence on the part of defendant, Department of Transportation (“DOT”), in
maintaining the roadway. The $25.00 filing fee was paid.
{¶ 3} Defendant located the pothole at milepost 78.50 on I-75 in Miami County.
Defendant denied liability based on the contention that no ODOT personnel had any
knowledge of the particular damage-causing pothole prior to plaintiff’s January 25, 2011
described occurrence. Defendant argued plaintiff did not provide any evidence to
establish the length of time the particular pothole was present on the roadway prior to
January 25, 2011. Defendant suggested, “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 contended plaintiff did not offer any evidence to
prove the roadway was negligently maintained. Defendant related the ODOT “Miami
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 in the vicinity of plaintiff’s incident on I-75 the last time that section of
roadway was inspected prior to January 25, 2011. Defendant’s maintenance records
show potholes were patched in the specific location of plaintiff’s incident on December
26, 2010 and January 25, 2011.1 Defendant denied DOT employees were negligent in
regard to roadway maintenance.
{¶ 5} Plaintiff did not file a response.
CONCLUSIONS OF LAW
{¶ 6} 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
1
Based on the statements made in the complaint, the trier of facts finds that, in all likelihood, this
pothole patching operation occurred as the result of one or more state troopers having notified defendant
of the pothole the morning of January 25, 2011.
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.
{¶ 7} 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.
{¶ 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. There is no evidence defendant had actual notice of the pothole
on I-75 prior to the morning of January 25, 2011.
{¶ 9} Therefore, to find liability plaintiff must prove 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 the
defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458.
{¶ 10} In order for there to be constructive notice, plaintiff must show 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. There is insufficient evidence to show defendant had constructive notice of the
pothole.
{¶ 11} 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 condition. 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.
{¶ 12} 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
MICHELLE UNDERWOOD, Case No. 2011-04321-AD
Plaintiff,
v. Acting Clerk Daniel R. Borchert
OHIO DEPARTMENT OF TRANSPORTATION,
Defendant. 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:
Michelle Underwood Jerry Wray, Director
1020 Park Avenue Department of Transportation
Piqua, Ohio 45356 1980 West Broad Street
Columbus, Ohio 43223
7/1
Filed 7/19/11
Sent to S.C. reporter 10/27/11