[Cite as Kakisaka v. Ohio Dept. of Transp., 2011-Ohio-5560.]



                                      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




YOSUKE KAKISAKA,                                               Case No. 2011-04207-AD

       Plaintiff,

       v.                                                      Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

       Defendant.                                              MEMORANDUM DECISION




        {¶ 1} Plaintiff, Yosuke Kakisaka, filed this action against defendant, Department

of Transportation (ODOT), contending his 2007 Mazda 5 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, that it “was

raining at that time, and it was difficult to see or avoid the pothole. Immediately after

driving through it, my tires burst.”            Plaintiff recalled the particular damage incident

occurred on March 9, 2011, at approximately 6:30 p.m. Plaintiff requested damages in

the amount of $1,565.31, the total cost of two replacement tires 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 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-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. 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.   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




YOSUKE KAKISAKA,                                        Case No. 2011-04207-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 plaintiff in the amount of $1,590.31, which includes the filing fee. Court costs are

assessed against defendant.




                                          DANIEL R. BORCHERT
                                          Acting Clerk

Entry cc:

Yosuke Kakisaka                           Jerry Wray, Director
27020 Cedar Road Apt. 604                 Department of Transportation
Beachwood, Ohio 44122                     1980 West Broad Street
                                          Columbus, Ohio 43223



7/1
Filed 7/19/11
Sent to S.C. reporter 10/27/11
