[Cite as Wyne v. Dept. of Transp. , 2010-Ohio-5583.] 

# 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

MICHAEL J. WYNE

Plaintiff

v.

DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2010-03169-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

{¶ 1} Plaintiff, Michael J. Wyne, filed this action against defendant, Department of Transportation (ODOT), contending he suffered property damage to his 2008 Ford Fusion as a proximate cause of negligence on the part of ODOT in maintaining a hazardous condition on State Route 11 in Trumbull County. Plaintiff related he was traveling south on State Route 11 “just south of Route 82, approximately at mile marker 51-52” when his vehicle struck a pothole causing tire damage. Plaintiff recalled the described incident occurred on January 8, 2010 at approximately 6:45 p.m. In his complaint, plaintiff requested damage recovery in the amount of $114.90, the cost of a replacement tire. The filing fee was paid. {¶ 2} Defendant denied liability based on the contention that no ODOT personnel had any knowledge of any roadway defects on State Route 11 prior to plaintiff’s January 8, 2010 incident. Defendant related that ODOT’s “investigation indicates that the location of Plaintiff Wyne’s incident is at milepost 9.5 on SR 11 in Trumbull County.” Defendant denied receiving any prior calls or complaints about a pothole in the vicinity of that location. Defendant asserted that plaintiff did not offer anyevidence to establish the length of time any potholes existed in the vicinity of milepost 9.50 on State Route 11 prior to 6:45 p.m. on January 8, 2010. Defendant suggested that “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.” {¶ 3} Additionally, defendant contended that plaintiff did not offer any evidence to prove that the roadway was negligently maintained. Defendant advised that the ODOT “Trumbull 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 the last time that section of roadway was inspected prior to January 8, 2010. The claim file is devoid of any inspection record. Defendant argued that plaintiff has failed to offer any evidence to prove his property damage was attributable to any conduct on the part of ODOT personnel. Defendant asserted that “SR 11 was in good condition at the time and in thegeneral vicinity of the plaintiff’s incident.” Defendant stated that, “[a] review of the sixmonth maintenance history (record submitted) for the area in question reveals that one (1) pothole patching operation was conducted in the general vicinity and it was the day of plaintiff’s incident.” No evidence has been produced to show the pothole plaintiff’s car struck had reformed after being patched. The submitted “Maintenance History” reflects that ODOT personnel conducted pothole patching on State Route 11 on the day of January 8, 2010 between mileposts 0.00 to 28.47. Defendant noted, “that if ODOT personnel had detected any defects they would have been promptly scheduled for repair.” {¶ 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 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 andfollowed. {¶ 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. Townsh ip 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 no evidence defendant had actual notice of the pothole on State Route 11 prior to the night of January 8, 2010. {¶ 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 evidenc e 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 by simply applying a pre-set time standard for the discovery of certain road hazards.” Bussard , 31 Ohio Misc. 2d 1, 31 OBR 64, 507 N.E. 2d 1179. “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. No evidence has shown that

ODOT had constructive no tice 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 pothole 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. The fact that defendant’s “Maintenance History” reflects pothole repairs were made in the vicinity of plaintiff’s incident on the same day does not prove negligent maintenance of the roadway on the part of ODOT. 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 plaintiff may have suffered from the pothole. {¶ 10} In the instant claim, plaintiff has failed to introduce sufficient evidence to prove that defendant maintained a known hazardous roadway condition. Plaintiff failed to prove his 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

MICHAEL J. WYNEPlaintiff

v.

DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2010-03169-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 defendant. Court costs are assessed against plaintiff.

________________________________ DANIEL R. BORCHERT Deputy Clerk

Entry cc:

Michael J. Wyne Jolene M. Molitoris, Director 4596 S. Arlington Road Department of Transportation Uniontown, Ohio 44685 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 7/12 Filed 7/28/10 Sent to S.C. reporter 11/15/10