[Cite as Pagnan v. Ohio Dept. of Transp., 2010-Ohio-6664.]

                                      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




COLLEEN PAGNAN

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-06150-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION




        {¶ 1} Plaintiff, Colleen Pagnan, filed this action against defendant, Department
of Transportation (ODOT), contending her 2005 Mazda was damaged as a proximate
cause of negligence on the part of ODOT in maintaining a hazardous condition on
Interstate 90 West in Lorain County. Specifically, plaintiff noted the tire and rim on her
car were damaged when the vehicle struck a pothole in the traveled portion of the
roadway.      In her complaint, plaintiff requested damage recovery in the amount of
$444.12, the total cost of replacement parts. Plaintiff recalled the damage incident
occurred on March 1, 2010, at approximately 11:35 a.m. The filing fee was paid.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the damage-causing pothole on Interstate 90 prior to
March 1, 2010. Defendant related that ODOT’s “investigation indicates that the location
of Plaintiff Pagan’s incident would be located at state milemarker 146.50 or county
milemarker 13.90 on I-90 in Lorain County.” Defendant denied receiving any calls or
complaints about a pothole in the vicinity of that location despite the fact that “[t]his
section of roadway has an average daily traffic count” of over 45,000 vehicles.
Defendant asserted that plaintiff did not offer any evidence to establish the length of
time any pothole existed in the vicinity of milepost 146.50 on Interstate 90 prior to 11:35
a.m. on March 1, 2010. 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 “Lorain 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 1, 2010.             The claim file is devoid of any
inspection record. Defendant argued that plaintiff has failed to offer any evidence to
prove her property damage was attributable to any conduct on the part of ODOT
personnel. Defendant asserted that, “[t]he roadway was in relatively good condition at
the time of Plaintiff’s incident.”     Defendant stated “[a] review of the six month
maintenance history for the area in question reveals that four (4) pothole patching
operations were conducted within the incident location on westbound I-90.” Defendant
noted “that if ODOT personnel had detected any defects during these inspections they
would have promptly been scheduled for repair.” Defendant’s records show pothole
patching was conducted in the vicinity of plaintiff’s incident on November 4, 2009,
January 21, 2010, January 27, 2010, and February 4, 2010.
       {¶ 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 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. 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. There is no evidence defendant had actual notice of the pothole
on Interstate 90 prior to 11:35 a.m. on March 1, 2010.
      {¶ 7} Therefore, to find liability based on notice, 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.
      {¶ 8} 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 defects are 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. No evidence has shown ODOT had constructive notice of the pothole.
       {¶ 9} 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 pothole 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. The fact that defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident on various occasions does not
prove negligent maintenance of the roadway on the part of ODOT. 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 plaintiff may have suffered from the pothole.
       {¶ 10} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained known hazardous roadway conditions. Plaintiff failed
to prove that her property damage was connected to any conduct under the control of
defendant, or that defendant was negligent in maintaining the roadway area, or that
there was any actionable negligence 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.
Consequently, plaintiff’s claim is denied.




                                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
COLLEEN PAGNAN

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-06150-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:

Colleen Pagnan                                    Jolene M. Molitoris, Director
154 Sanders Road                                  Department of Transportation
Apt. 6                                            1980 West Broad Street
Buffalo, New York 14216                           Columbus, Ohio 43223

RDK/laa
9/15
Filed 11/10/10
Sent to S.C. reporter 2/11/11
