[Cite as Breslin v. Ohio Dept. of Transp., Dist. 12, 2010-Ohio-6677.]

                                        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




BARTON L. BRESLIN

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DIST. 12

        Defendant

        Case No. 2010-08233-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Barton L. Breslin, filed this action against defendant, Department
of Transportation (ODOT), contending that his 2009 BMW 135I was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 271 in Cuyahoga County. In his complaint, plaintiff described the
particular damage event noting: “I was driving on the ramp from I-422 W northbound
onto I 271, there was a large chuck hole right at the end of (the) ramp.                         It was
impossible to miss without endangering myself-I hit the hole with my left front tire and
left rear tire,” causing tire and rim damage to the vehicle. Plaintiff seeks recovery of
damages in the amount of $462.25, the cost of replacement parts and related repair
expense he incurred as a result of the described damage incident. Plaintiff recalled his
property damage event occurred on May 5, 2010 at approximately 5:30 p.m. The filing
fee was paid.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of any roadway defects on Interstate 271 prior to
plaintiff’s May 5, 2010 incident. Defendant related that ODOT’s “investigation indicates
that the location of Plaintiff Breslin’s incident would be at approximately county milepost
6.30 or state milepost 28.10 on I-271 in Cuyahoga 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
14,002 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 28.10 on
Interstate 271 prior to 5:30 p.m. on May 5, 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 “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 the last time
that section of roadway was inspected prior to May 5, 2010. The claim file is devoid of
any inspection record. Defendant argued that plaintiff has failed to offer any evidence to
prove his property damage was attributable to any conduct on the part of ODOT
personnel. Defendant asserted that “I-271 was in good condition at the time and in the
general vicinity of plaintiff’s incident.” Defendant stated that, “[a] review of the six-month
maintenance history (record submitted) for the area in question reveals that five (5)
pothole patching operations were conducted in the general vicinity and only one of
these was in the southbound direction.”         Patching operations were performed on
January 11, 2010, January 13, 2010, January 25, 2010, February 18, 2010, and March
4, 2010. The submitted “Maintenance History” reflects pothole patching operations and
no other activity. Defendant noted, “that if ODOT personnel had detected any defects
they would have been promptly scheduled for repair.”
       {¶ 4} For plaintiff to prevail on a claim of negligence, he must prove, 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.
      {¶ 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 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
potholes on Interstate 271 prior to the afternoon of May 5, 2010.
      {¶ 7} Therefore, to find liability, plaintiff must prove that ODOT had constructive
notice of the defects.   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 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. No evidence has shown that 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 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. 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 conditions. 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 his 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




BARTON L. BRESLIN

      Plaintiff
        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

        Defendant

         Case No. 2010-08233-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:

Barton L. Breslin                                 Jolene M. Molitoris, Director
4780 Lindsey Lane                                 Department of Transportation
Richmond Hts., Ohio 44143                         1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
10/27
Filed 11/23/10
Sent to S.C. reporter 2/18/11
