[Cite as Williams v. Ohio Dept. of Transp. , 2010-Ohio-4034.] 

# 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

SHAKIM WILLIAMS

Plaintiff

v.

OHIO DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2009-09752-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

FINDINGS OF FACT {¶ 1} 1) On December 14, 2009, at approximately 5:00 a.m., plaintiff, Shakim Williams, was traveling south on Interstate 270 in Franklin County, when his 2000 Toyota Camry struck a pothole causing rim and tire damage to the vehicle. {¶ 2} 2) Plaintiff asserted that the damage to his car was proximately caused by negligence on the part of defendant, Depart ment of Transportation (ODOT), in failing to maintain the roadway free of hazards such as potholes. Plaintiff filed this complaint seeking to recover $169.32, the stated cost of replacement tires. Payment of the filing

fee was waived. {¶ 3} 3) Defendant denied liability based on the contention that no ODOT personnel had any knowledge of the particular pothole on the roadway prior to plaintiff’s property damage occurrence. Defendant advised that phone logs show no complaints were on file regarding the specific damage-causing pothole which ODOT located “at approximately milepost 43.08 on I-270 in Franklin County.” Defendant asserted that plaintiff failed to offer any evidence to prove his property damage was attributable toconduct on the part of ODOT personnel. 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.” Defendant explained that the ODOT “Franklin 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 at milepost 43.08 on Interstate 270 the last time that section of roadway was inspected before December 2009. Defendant’s maintenance records show that “five (5) pothole patching operations were conducted in the general vicinity of plaintiff’s incident.” The maintenance record (copy submitted) indicates that ODOT crews patched potholes in the area including milepost 43.08 on July 8, 2009, July 9, 2009, July 16, 2009, July 17, 2009, and October 30, 2009. Defendant contended that plaintiff failed to produce any evidence to establish the length of time the pothole existed prior to 5:00 a.m. on December 14, 2009. Defendant stated that, “if ODOT personnel had detected any potholes they would have been reported and promptly scheduled for repair.” {¶ 4} 4) Despite filing a response, plai ntiff did not prod uce evidence to establish the length of time that the pothole at milepost 43.08 existed prior to 5:00 a.m. on December 14, 2009. Plaintiff acknowledged th at “I, the plaintiff, in no way feel there was any neglect in the maintaining of the roads by ODOT.” Plaintiff suggested the pothole his vehicle struck may “have been overlooked” during roadway inspection. Plaintiff admitted he has no evidence to show the length of time the pothole was on the roadway prior to his incident.

CONCLUSIONS OF LAW {¶ 5} 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. 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, “[it] 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 choiceamong 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. 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 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 fi nd liability on a notice theory, evidence of constructive notice of the pothole must be presented. {¶ 7} “[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, 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 a finding of 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’sconstructive 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 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, 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 neglig ently 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.



# 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

SHAKIM WILLIAMS

Plaintiff

v.

OHIO DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2009-09752-AD

Deputy Clerk Daniel R. Borchert

ENTRY OF ADMINISTRATIVE DETERMINATIONHaving 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:

Shakim Williams Jolene M. Molitoris, Director 5415 B2 Yorkshire Terrace Department of Transportation Columbus, Ohio 43232 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 4/7 Filed 4/28/10 Sent to S.C. reporter 8/26/10