[Cite as Bartolone v. Dept. of Transp., 2009-Ohio-7163.]

                                       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




NICHOLAS BARTOLONE

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2009-06672-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                          FINDINGS OF FACT
        {¶ 1} 1)       On July 5, 2009, at approximately 5:30 p.m., plaintiff, Nicholas
Bartolone, was traveling west on Interstate 480 in Summit County, when his 2004 Audi
S4 struck a large pothole causing tire and rim damage to the vehicle.
        {¶ 2} 2)       Plaintiff asserted the damage to his car was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in failing to
maintain the roadway free of defects such as potholes. Plaintiff filed this complaint
seeking to recover damages in the amount of $419.43, the cost of replacement parts.
The $25.00 filing fee was paid and plaintiff requested reimbursement of that cost along
with his damage claim.
        {¶ 3} 3)       Defendant denied liability in this matter contending no ODOT
personnel had any knowledge of the particular pothole prior to plaintiff’s property
damage occurrence.             Defendant advised that ODOT records show no calls or
complaints were received regarding the particular damage-causing pothole, which
defendant located at state milepost 32.28 on Interstate 480 in Summit County.
Defendant asserted plaintiff did not produce any evidence to establish the length of time
the pothole existed at that location prior to 5:30 p.m. on July 5, 2009.        Defendant
suggested “it is likely the pothole existed for only a short time before the incident.”
Defendant explained the ODOT “Summit County Manager examines all state roadways
within the county at least two times a month” and considering Interstate 480 “is a busy
interstate, inspections are done almost daily.”    The file is devoid of any inspection
record. Apparently, no potholes were discovered at milepost 32.28 on Interstate 480
the last time that section of roadway was examined or inspected before July 5, 2009.
                                CONCLUSIONS OF LAW
      {¶ 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, 788 N.E. 2d 1088, ¶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, “[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. This
court, as trier of fact, determines questions of proximate causation.         Shinaver v.
Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477.
      {¶ 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. 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.
      {¶ 7} Ordinarily, in a claim involving roadway defects, plaintiff must prove either:
1) defendant had actual or constructive notice of the defective condition 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.
      {¶ 8} Plaintiff has not produced sufficient evidence to indicate the length of time
that the particular pothole was present on the roadway prior to the incident forming the
basis of this claim. Plaintiff has not shown that defendant had actual notice of the
pothole.    Additionally, 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. There is no indication defendant had constructive
notice of the pothole. 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 not produced any evidence to infer 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.
      {¶ 9} Plaintiff has not proven, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to him or that his injury was proximately
caused by defendant’s negligence. Plaintiff failed to show that the damage-causing
condition was created by conduct under the control of defendant, or negligent
maintenance 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.
                               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




NICHOLAS BARTOLONE

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2009-06672-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:

Nicholas Bartolone                              Jolene M. Molitoris, Director
9793 S. Delmonte Blvd.                          Department of Transportation
Streetsboro, Ohio 44241                         1980 West Broad Street
                                                Columbus, Ohio 43223
RDK/laa
10/14
Filed 11/17/09
Sent to S.C. reporter 3/5/10
