[Cite as Parks v. Ohio Dept. of Transp. , 2011-Ohio-5520.] 

# 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

JILL C. PARKS, Plaintiff, Case No. 2011-02972-AD

v. OHIO DEPARTMENT OF TRANSPORTATION,

Defendant. Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

FINDINGS OF FACT {¶ 1} In her complaint, plaintiff, Jill Parks, relates that on February 7, 2011, at approximately 6:55 a.m., she was “[d]riving to work on I75 S and hit a huge pothole on the interstate in the left lane. This pothole wa s in the left lane in line with the driver’s side of the car and was so large that it was unavoidable.” In addition, plaintiff asserts the “incident occurred on I75 S between Mitchell and 74.” Plaintiff suffered damage to the left front tire and rim from the impact. {¶ 2} Plaintiff filed this complaint seeking to recover $200.59, the cost of a replacement tire and wheel and related repair expenses. Plaintiff asserted 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 between mileposts 4.4 and 6.46 on I-75 in Hamilton County. According to defendant, two complaints regarding potholes near this location were received, one on December 31, 2010, which was repaired the same day, and another on February 7, 2011, which was repaired on February 11, 2011. {¶ 4} Defendant explained DOT employees conduct roadway inspections on all state roadways within the county on a routine basis, “at least two times a month.” Defendant denied DOT employees were negligent in regard to roadway maintenance. {¶ 5} Plaintiff did not file a response.

CONCLUSIONS OF LAW {¶ 6} 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. {¶ 7} 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. 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 roadwayconditions 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 find liability on a notice theory, evidence of cons tructive notice of the pothole must be presented. {¶ 8} “[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, 47 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 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. {¶ 9} 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. {¶ 10} In another case filed with this court, plaintiff Kevin White filed a complaint stating that on January 4, 2011, while driving on I-75 southbound “from Mitchell Ave Exit6 toward downtown Cincinnati” he “hit a huge pothole in the extreme left hand lane” at mile marker 5.1. White further stated that he drove that route every day to work and that as of February 22, 2011, the pothole had not been repaired. The court finds that in all likelihood plaintiff Parks struck the same pothole. Based upon plaintiff White’s sworn statement in Case No. 2011-02891, the court finds that DOT had constructive notice of the pothole plaintiff hit. {¶ 11} Additionally, the trier of fact finds it is extremely unlikely periodic inspection activity would not have discovered the damage-causing defect on I-75

southbound between the Mitchell Avenue exit and Interstate 74 at some time between January 4 and February 7, 2011. The cr edibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court does not find defendant’s assertions persuasive that routine patrols were conducted or that the roadway was adequately maintained. Indeed, the trier of fact finds that there is no evidence that the roadway was routinely inspected or that the inspection was adequate. Kornokovich v. Ohio Dept. Of Transp. , Ct. Of Cl. No. 2009- 05641-AD, 2009-Ohio-7123. Conversely, the trier of fact finds plaintiff White’s assertions persuasive that the roadway was not adequately maintained. Negligence in this action has been proven and defendant is liable to plaintiff for all damages claimed, $200.59, plus the $25.00 filing fee costs. Bailey v. Ohio Department of

Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.

# 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

JILL C. PARKS, Plaintiff, Case No. 2011-02972-AD

v. OHIO DEPARTMENT OF TRANSPORTATION,

Defendant. Acting Clerk Daniel R. Borchert

ENTRY OF ADMINISTRATIVE DETERMINATION

{¶ 12} 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 plaintiff in the amount of $225.59, which includes the filing fee. Court costs are assessed against defendant.

DANIEL R. BORCHERT Acting Clerk Entry cc: Jill C. Parks Jerry Wray, Director 10938 Fernhill Drive Department of Transportation Sharonville, Ohio 45241 1980 West Broad Street Columbus, Ohio 43223

6/8 Filed 7/19/11 Sent to S.C. reporter 10/27/11