[Cite as Davis v. Ohio Dept. of Transp., 2011-Ohio-5535.]
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
DENISE DAVIS, Case No. 2011-03693-AD
Plaintiff,
v. Acting Clerk Daniel R. Borchert
OHIO DEPARTMENT OF TRANSPORTATION,
Defendant. MEMORANDUM DECISION
{¶ 1} Plaintiff, Denise Davis filed this action against defendant, Ohio
Department of Transportation (ODOT), contending that her vehicle was damaged as a
proximate result of negligence on the part of ODOT in maintaining a hazardous
condition on State Route 22. In her complaint, plaintiff described the particular damage
event noting that she “[h]it a large pothole on 7679 Montgomery Road & had to replace
the damaged tire & the other three due to AWD of my vehicle. I called and was told that
the hole had been reported on 3/1/2011.” Plaintiff seeks recovery of damages in the
amount of $1,197.84, the stated total amount for four replacement tires. The 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 related that plaintiff’s incident occurred between mileposts
10.66 and 10.72 on US 22 in Hamilton County. Defendant denied receiving any prior
calls or complaints about a pothole or potholes in the vicinity of that location. Defendant
asserted that plaintiff did not offer any evidence to establish the length of time the
pothole existed on US 22 prior to her 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 “Hamilton 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 March 2, 2011. The
claim file is devoid of any inspection record. Defendant argued that plaintiff has failed to
offer any evidence to prove 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.” Plaintiff did not file a
response.
{¶ 4} 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.
{¶ 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),
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.
{¶ 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 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 insufficient evidence that defendant had actual notice of
the pothole on US 22 prior to March 2, 2011.
{¶ 7} 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.
{¶ 8} 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. Insufficient evidence has been submitted to show that ODOT had constructive
notice of the pothole.
{¶ 9} 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 any 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.
{¶ 10} 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
DENISE DAVIS, Case No. 2011-03693-AD
Plaintiff,
v. Acting Clerk Daniel R. Borchert
OHIO DEPARTMENT OF TRANSPORTATION,
Defendant. ENTRY OF ADMINISTRATIVE DETERMINATION
{¶ 11} 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:
Denise Davis Jerry Wray, Director
3460 Davis Lane Department of Transportation
Cincinnati, Ohio 45237 1980 West Broad Street
Columbus, Ohio 43223
6/17
Filed 7/19/11
Sent to S.C. reporter 10/27/11