[Cite as Otloski v. Ohio Dept. of Transp., 2011-Ohio-5316.]



                                       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




MARK E. OTLOSKI

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2011-05319-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Mark Otloski, filed this action against defendant, Department of
Transportation (ODOT), contending his 1993 Oldsmobile Cutlass Ciera was damaged
as a proximate result of negligence on the part of ODOT personnel in maintaining a
hazardous condition on I-480 in Cuyahoga County. In his complaint, plaintiff provided a
narrative description of his damage event recording he was traveling west on I-480
when “my left front tire struck a pothole created from a missing section of concrete prior
to the bridge expansion joint causing the tire rim to be severely bent, flattening and
damaging the tire and damaging the wheel cover.”                  Plaintiff recalled the particular
damage incident occurred on March 9, 2011, at approximately 8:10 p.m.                           Plaintiff
requested damages in the amount of $229.85, the total cost of a replacement tire and
related repair expenses. The $25.00 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 9, 2011 described occurrence.               Defendant located the pothole “at
milepost 0.53 on I-480 in Cuyahoga County.” Defendant argued plaintiff did not provide
any evidence to establish the length of time the particular pothole was present on the
roadway prior to March 9, 2011. 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.”
        {¶3}    Furthermore, defendant contended plaintiff did not offer any evidence to
prove the roadway was negligently maintained.              Defendant related the ODOT
“Cuyahoga 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 on I-480 the last time that
section of roadway was inspected prior to March 9, 2011. Defendant’s maintenance
records show potholes were patched in the specific location of plaintiff’s incident on
January 5, February 11, and March 7, 2011.
        {¶4}    Plaintiff filed a response wherein he pointed out that several other vehicles
also sustained damage from the same pothole, and that a Bedford Heights police officer
was on the scene assisting the motorists.
        {¶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 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 defendant had actual notice of the pothole
on I-480 prior to the evening of March 9, 2011.
      {¶8}    Therefore, to find liability plaintiff must prove 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 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 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. There is insufficient evidence to show defendant had constructive notice of the
pothole.
      {¶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.      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. A pothole patch which deteriorates in less than ten
days is prima facie evidence of negligent maintenance. Matala v. Ohio Department of
Transportation, Ct. of Cl. No. 2003-01270-AD, 2003-Ohio-2618; Schrock v. Ohio Dept.
of Transp., Ct. of Cl. No. 2005-02460-AD, 2005-Ohio-2479.                According to the
investigation report submitted by defendant, plaintiff’s vehicle was damaged by a
pothole that had been patched as recently as March 7, 2011 and the repair patch had
failed by March 9, 2011.
       {¶11} The fact that the pothole plaintiff’s car struck deteriorated in a time frame
of less than two days warrants application of the standard expressed in Matala; Fisher
v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-04869-AD, 2007-Ohio-5288. See also
Romes v. Ohio Dept. Of Transp., Ct. of Cl. No. 2008-01286-AD, 2008-Ohio-4624.
Negligence in this action has been proven and defendant is liable for the damage
claimed, plus filing fee costs.


                                  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




MARK E. OTLOSKI

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

       Case No. 2011-05319-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 $254.85, which includes reimbursement of the filing fee.
Court costs are assessed against defendant.




                                          DANIEL R. BORCHERT
                                          Acting Clerk

Entry cc:

Mark R. Otloski                           Jerry Wray, Director
1474 West 29th Street                     Department of Transportation
Cleveland, Ohio 44113                     1980 West Broad Street
                                          Columbus, Ohio 43223
SJM/laa
6/28
Filed 7/13/11
Sent to S.C. reporter 10/13/11
