[Cite as Shapiro v. Ohio Dept. of Transp., 2011-Ohio-5126.]



                                       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




JAMIE SHAPIRO

        Plaintiff

        v.

THE OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2011-03791-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Jamie Shapiro, filed this action against defendant, Department of
Transportation (ODOT), contending his 2000 Audi 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 “before approaching off
ramp to State Road, I * * * hit pothole, trying to avoid it, but hit driver’s front tire.”
Plaintiff recalled the particular damage incident occurred on February 1, 2011, at
approximately 9:00 p.m. Plaintiff requested damages in the amount of $907.86, the
total cost of a replacement tire 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 February 1, 2011 described occurrence. Defendant located the pothole “at
state milepost 16.50 or county milepost 14.32 on I-271 in Cuyahoga County.”1




        1
            Although defendant references I-271 in the report, all of the supporting documentation pertains
to I-480.
       {¶3}   Defendant argued plaintiff did not provide any evidence to establish the
length of time the particular pothole was present on the roadway prior to February 1,
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.”
       {¶4}   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 February 1, 2011. Defendant’s maintenance
records show potholes were patched in the vicinity of plaintiff’s incident on December
17, 2010, and January 31, 2011.
       {¶5}   Plaintiff did not file a response.
       {¶6}   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.
       {¶7}   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.
       {¶8}   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 February 1, 2011.
      {¶9}    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.
      {¶10} 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.
      {¶11} 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 defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident twice in the six weeks preceding
February 1, 2011, does not prove negligent maintenance of the roadway on the part of
ODOT. See Maynard v. Ohio Dept. of Transp., Dist. 10, Ct. of Cl. No. 2004-03730-AD,
2004-Ohio-3284; Marcis v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-05830-AD, 2004-
Ohio-4830.
      {¶12} 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




JAMIE SHAPIRO

        Plaintiff

        v.

THE OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-03791-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:

Jamie Shapiro                                     Jerry Wray, Director
10029 Pleasant Lake Blvd. P-21                    Department of Transportation
Parma, Ohio 44130                                 1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
6/17
Filed 6/27/11
Sent to S.C. reporter 10/4/11
