[Cite as Glascoe v. Ohio Dept. of Transp. , 2010-Ohio-6624.] 

# 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

CAROLYN F. GLASCOE

Plaintiff

v.

OHIO DEPT. OF TRANSPORTATION

Defendant

Case No. 2010-06311-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION

{¶ 1} Plaintiff, Carolyn F. Glascoe, filed this action against defendant, Department of Transportation (ODOT), contending that she suffered property damage as a proximate cause of negligence on the part of ODOT personnel in maintaining a hazardous condition on US Route 35 in Montgomery County. Plaintiff recalled that she was traveling east on US Route 35 on April 3, 2010 at approximately 2:00 p.m. when her 2004 Ford Focus struck a pothole causing tire and rim damage to the vehicle. In her complaint, plaintiff requested damages in the amount of $274.01, the total cost of replacement parts and related repair expenses she incurred resulting from the April 3, 2010 described incident. 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 plaintiff’s April 3, 2010 described occurrence. Defendant located the particular pothole “at milemarker 10.32 on US 35 in Montgomery County” and advised that “ODOT did not receive any reports of the pothole or have knowledge of the pothole prior to the (April 3, 2010) incident.” According to ODOT records, no pothole complaints were received inthe vicinity of plaintiff’s incident. {¶ 3} Defendant denied that ODOT negligently maintained US Route 35 in Montgomery County. Defendant noted that the ODOT “Montgomery County Manager inspects all state roadways within the county at least two times a month.” Apparently no potholes were discovered at milepost 10.32 on US Route 35 the last time that section of roadway was inspected prior to April 3, 2010. Defendant submitted an inspection record showing that US Route 35 in the vicinity of milepost 10.32 was last inspected prior to plaintiff’s incident on March 18, 2010. This inspection record bears the notation that the roadway in the vicinity of milepost 10.32 needed sealed. Defendant’s “Maintenance History” shows that ODOT crews patched potholes in the vicinity of milepost 10.32 on January 15, 2010 and patched the particular damage-causing pothole on April 5, 2010. Defendant asserted that the particular location of US Route 35 is an actively inspected location and suggested that the pothole plaintiff’s car struck “existed for only a short time before the incident.” {¶ 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. Plaintiff has the burden of proving, by a preponderance of the evidence, that she 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), 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), 67Ohio 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. {¶ 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, 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.



# 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

CAROLYN F. GLASCOE

Plaintiff

v.

OHIO DEPT. OF TRANSPORTATION

Defendant

Case No. 2010-06311-AD

Clerk Miles C. Durfey

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.

________________________________ MILES C. DURFEY Clerk

Entry cc:Carolyn F. Glascoe Jolene M. Molitoris, Director 221 Voyager Avenue Department of Transportation Dayton, Ohio 45417 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 9/29 Filed 10/12/10 Sent to S.C. reporter 1/21/11