[Cite as Dolan v. Ohio Dept. of Transp., 2011-Ohio-3775.]




                                      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




MICHAEL J. DOLAN, II

       Plaintiff

       V.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

       Defendant


        Case No. 2010-11889-AD


Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Michael J. Dolan, II, filed this action against defendant,
Department of Transportation (ODOT), contending that his 2008 Suzuki Forenza was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on Interstate 77 South in Cuyahoga County. Specifically, plaintiff
related that two rims, two wheel covers, two tires, and a fender well on his Suzuki
Forenza were damaged when the vehicle struck “a very large pothole” located “just past
the Grant Road (exit 158) sign” in the right lane of Interstate 77. Plaintiff recalled that
the described incident occurred on November 6, 2010 at approximately 9:35 p.m. In his
complaint, plaintiff requested damage recovery in the amount of $959.44, the total cost
of replacement parts and related repair expense he incurred resulting from the
November 6, 2010 occurrence.               Also, attached with the complaint is a photograph
depicting the damage-causing pothole on Interstate 77.             The photograph shows a
massive pavement deterioration estimated at 68" long, 10" wide and 4" deep. Another
submitted photograph of the pothole shows that the defect is so extensive that it has
completely obliterated the painted white edge line of the right lane of the roadway. The
filing fee was paid.
       {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had knowledge of the pothole prior to plaintiff’s November 6, 2010
damage occurrence. Defendant professed ignorance regarding the length of time that
the pothole existed prior to plaintiff’s incident. Defendant located the pothole “at state
milepost 158.6 or county milepost 11.44 on I-75 in Cuyahoga County.”              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} Furthermore, defendant asserted that plaintiff has failed to produce
evidence to show his damage was attributable to conduct on the part of ODOT.
Defendant contended that plaintiff failed to provide any evidence to show 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, the massive roadway
defect at milepost 158.6 on Interstate 77 was not discovered the last time that section of
roadway was inspected prior to November 6, 2010. The claim file is devoid of any
inspection record. Defendant did submit a “Maintenance History” record for the time
period from May 1, 2010 to November 6, 2010 regarding “pothole patching” on
Interstate 77 in Cuyahoga County. No additional maintenance activity is included on
this record. Defendant stated that, “[t]he roadway was in relatively good condition at the
time of plaintiff’s incident.” Additionally, defendant stated that, “[a] review of the six-
month maintenance history for the area in question reveals that no (0) pothole patching
operations were conducted in the general vicinity of plaintiff’s incident.” The submitted
“Maintenance History” recorded that the last time ODOT personnel patched potholes on
Interstate 77 prior to November 6, 2010, was on July 26, 2010 when patching
operations were conducted at milepost 163.05.             Defendant noted “that if ODOT
personnel had detected any defects they would have promptly been scheduled for
repair.”
       {¶ 4} Defendant pointed out that the damage-causing pothole at milepost 158.6
“is on or past the white (edge) line.” Defendant referenced the submitted photographs
when advising the precise location of the pothole. Defendant asserted that the damage-
causing pothole was not located on the traveled portion of the roadway and generally, a
plaintiff may not recover for property damage caused by a roadway defect located off
the traveled portion of the roadway on the berm area. Defendant insisted that the
photographic evidence depicted a defect located on the edge of the right-hand lane and
not on the traveled portion of the roadway. The trier of fact disagrees. Upon review of
the submitted photographs, the trier of fact finds the pothole, which is massive in size,
totally obliterated the white edge line; a portion of roadway designed for travel. This
court has previously held that “[a] roadway defect that obliterates the white painted edge
line is considered to exist on the traveled portion of the roadway.” White v. Dept. of
Transp., Ct. of Cl. No. 2009-04971-AD, 2009-Ohio-7110 ¶8.¶ Considering other criteria
are met, ODOT may bear liability for damage caused by roadway defects located on the
roadway edge line.
      {¶ 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. 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.
      {¶ 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.
      {¶ 8} Ordinarily, to recover in a suit involving injury proximately caused by
roadway conditions including potholes, plaintiff must prove that either: 1) defendant had
actual or constructive notice of the 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.
Plaintiff has not provided any evidence to prove that ODOT had actual notice of the
damage-causing condition. Therefore, in order to recover plaintiff must offer proof of
defendant’s constructive notice of the condition as evidence to establish negligent
maintenance.
      {¶ 9} “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of
Fahle (1950), 90 Ohio App. 195, 197-198, 48 O.O. 231, 105 N.E. 2d 429. “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.        In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, 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; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
      {¶ 10} Plaintiff has not produced any evidence to indicate the length of time that
the 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 condition. Also,
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. Furthermore, generally, 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.        However, in the instant claim, the trier of fact finds the
photographic evidence depicting the massive pavement deterioration resulting in a
crater-like defect, is sufficient to establish constructive notice. Additionally, the trier of
fact finds it is extremely unlikely periodic inspection activity would not have discovered
the damage-causing defect at milepost 158.6. The credibility of witnesses and the
weight attributable to their testimony are primarily matters for the trier of fact. State v.
DeHass (1967), 10 Ohio St. 2d 230, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of
the syllabus. The court is free to believe or disbelieve, all or any part of each witness’s
testimony. State v. Antill (1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548.
The court does not find defendant’s assertions persuasive that routine patrols were
conducted or that the roadway was adequately maintained. Conversely, the trier of fact
finds that there is no evidence that the roadway was routinely inspected or that the
inspection was adequate. Kornokovich v. Ohio Dept. Of Transp., Ct. Of Cl. No. 2009-
05641-AD, 2009-Ohio-7123.        Therefore, based on the rationale of Denis, the court
concludes that defendant is liable to plaintiff for all damages claimed, $959.44, plus the
$25.00 filing fee costs. Bailey v. Ohio Department of Rehabilitation and Correction
(1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.




                                 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




MICHAEL J. DOLAN II
        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

        Defendant

         Case No. 2010-11889-AD

Clerk Miles C. Durfey


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 $984.44, which includes the filing fee. Court costs are
assessed against defendant.




                                           MILES C. DURFEY
                                           Clerk

Entry cc:

Michael J. Dolan II                        Jerry Wray, Director
9757 Firestone Lane                        Department of Transportation
Macedonia, Ohio 44056                      1980 West Broad Street
                                           Columbus, Ohio 43223
RDK/laa
3/29
Filed 4/20/11
Sent to S.C. reporter 7/29/11
