[Cite as Ross v. Ohio Dept. of Transp., 2011-Ohio-5531.]



                                       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

PETER ROSS,                                                Case No. 2011-03588-AD

       Plaintiff,

       v.                                                  Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

       Defendant.                                          MEMORANDUM DECISION


        {¶ 1} Plaintiff, Peter Ross, filed this action against defendant, Department of

Transportation (ODOT), contending his 2010 Honda Insight was damaged as a

proximate result of negligence on the part of ODOT personnel in maintaining a

hazardous condition on I-271 in Summit County. In his complaint, plaintiff provided a

narrative description of his damage event recording he was traveling north on I-271,

“when we hit a large pothole that was too big to avoid. The pothole caused our left-front

tire to blow out and shred.” Plaintiff recalled the particular damage incident occurred on

March 5, 2011, at approximately 10:00 a.m. Plaintiff requested damages in the amount

of $169.13, the total cost of a replacement tire and reimbursement of the filing fee. 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 5, 2011 described occurrence. Defendant located the pothole “near

state milepost 28.25 or county milepost 6.26 on I-271 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 5, 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-271 the last time that

section of roadway was inspected prior to March 5, 2011. Defendant’s maintenance

records show “no pothole patching operations were conducted in the northbound

direction” in the vicinity of plaintiff’s incident in the six months preceding March 5, 2011.

       {¶ 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 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-271 prior to the morning of March 5, 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.

      {¶ 11} Plaintiff has not produced sufficient 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.

Plaintiff has failed to introduce sufficient evidence to prove defendant maintained a

known hazardous roadway condition.      Plaintiff has failed to prove that his property

damage was connected to any conduct under the control of defendant, defendant was

negligent in maintaining the roadway area, or that there was any 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.
                                 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

PETER ROSS,                                         Case No. 2011-03588-AD

        Plaintiff,

        v.                                          Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

        Defendant.                                  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
                                                 Acting Clerk

Entry cc:

Peter Ross                                       Jerry Wray, Director
300 W. Spring Street                             Department of Transportation
Unit 1302                                        1980 West Broad Street
Columbus, Ohio 43215                             Columbus, Ohio 43223




6/17
Filed 7/19/11
Sent to S.C. reporter 10/27/11
