[Cite as Cohn v. Dept. of Transp., 2011-Ohio-6574.]



                                      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



ALAN COHN

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-04282-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Alan Cohn, filed this action against defendant, Ohio Department
of Transportation (ODOT), contending that his 2004 BMW was damaged as a proximate
result of negligence on the part of ODOT in maintaining a hazardous condition on
Interstate 77 in Summit County.              In his complaint, plaintiff described the particular
damage event noting that: “I was driving 65 mph south on I-77 near the Arlington Rd
Exit (Akron, Ohio) when I hit a center-lane pothole. It was huge and was unavoidable.
The impact led to a blowout (right rear). The impact was so severe I also bent the
wheel.” According to plaintiff, the incident occurred on March 8, 2011, at 10:30 p.m.
Plaintiff seeks recovery of damages in the amount of $437.57, the stated cost for tire
and wheel replacement parts. 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 March 8, 2011 incident.             Upon investigation, defendant located plaintiff’s
incident at “county milepost 6.73 or state milepost 120.22 on I-77 in Summit County.”
Defendant denied receiving any prior calls or complaints about a pothole or potholes in
the vicinity of that location despite the fact that “[t]his section of roadway has an average
daily traffic count” of over 90,000 vehicles. Defendant asserted that plaintiff did not offer
any evidence to establish the length of time that any pothole existed in the vicinity of
milepost 120.22 on I-77 prior to March 8, 2011. 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 “Summit 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 March 8, 2011.             The claim file is devoid of any
inspection record. Defendant argued that plaintiff has failed to offer any evidence to
prove that his 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] for the area in question reveals that three (3) pothole patching
operations were conducted in the southbound direction of I-77.” Defendant noted, “that
if ODOT personnel had detected any defects they would have been promptly scheduled
for repair.”
       {¶4}    Plaintiff did not file a response.
       {¶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. 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.
       {¶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. 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.
        {¶7}    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 that defendant had actual notice of the
pothole on I-77 prior to March 8, 2011.
        {¶8}    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.
        {¶9}    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.
        {¶10} 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. Evidence submitted in another claim, 2011-05416-AD, suggests
that the defect plaintiff’s car struck was present on the roadway before 10:30 p.m. on
March 8, 2011.     In claim 2011-05416-AD the plaintiff’s vehicle struck a pothole at
milepost 120.22 on Interstate 77 south at approximately 1:15 p.m. on March 5, 2011.
      {¶11} The trier of fact finds that defendant had constructive notice of the
damage-causing defect at milepost 120.22 on Interstate 77. Evidence has shown that
the defect was present on the roadway at least three days before plaintiff’s incident.
The trier of fact finds that sufficient time elapsed from the time the condition first
appeared until plaintiff’s damage event to establish constructive notice.
      {¶12} Accordingly, the court concludes that defendant is liable to plaintiff for all
damages claimed, $437.57, 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



ALAN COHN

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant
        Case No. 2011-04282-AD

Acting 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 plaintiff in the amount of $462.57, which includes the filing fee. Court costs are
assessed against defendant.
                                                 ________________________________
                                                 DANIEL R. BORCHERT
                                                 Acting Clerk

Entry cc:

Alan Cohn                                        Jerry Wray, Director
5137 Beechgrove Avenue N.E.                      Department of Transportation
Canton, Ohio 44705                               1980 West Broad Street
                                                 Columbus, Ohio 43223




6/28
Filed 8/4/11
Sent to S.C. reporter 12/20/11
