[Cite as Drozin v. Ohio Dept. of Transp., Dist. 3, 2011-Ohio-7059.]

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

CAITLIN DROZIN 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DISTRICT 3 

 Defendant 

Case No. 2011-09438-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, Caitlin Drozin, filed this action against defendant, Department of 

Transportation (ODOT), contending her 1999 Dodge Avenger was damaged as a 

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

hazardous condition on State Route 585 northbound. In her complaint, plaintiff stated 

that she hit a pothole and the impact caused substantial damage such that the car was 

immediately disabled. Plaintiff recalled the particular damage incident occurred on April 

15, 2011, at approximately 5:20 p.m. Plaintiff requested damages in the amount of 

$332.00, which includes reimbursement of her insurance deductible, a tank of gas, and 

the filing fee. The $25.00 filing fee was paid. 

{¶2} Plaintiff submitted several photographs she took on April 18, 2011, 

depicting the pothole she hit. The pothole appears to be approximately two feet by two 

feet square and shows evidence of prior patching efforts. The defect is located near the 

white edgeline and extends slightly onto the berm. 

{¶3} Defendant denied liability based on the contention that no ODOT 

personnel had any knowledge of the particular damage-causing pothole prior to 
plaintiff’s April 15, 2011 described occurrence. Defendant located the pothole “between 

mileposts 13.90 and 15.87 on SR 585 in Wayne County.” Defendant explained ODOT 

did not receive any reports of the pothole or have knowledge of the pothole prior to 

plaintiff’s incident. Defendant argued plaintiff did not provide any evidence to establish 

the length of time the particular pothole was present on the roadway prior to April 15, 

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 “Wayne 

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 SR 585 the last time that section of 

roadway was inspected prior to April 15, 2011. Defendant’s maintenance records show 

potholes were patched in the vicinity of plaintiff’s incident on March 12, 2011. 

{¶5} Plaintiff filed a response contending that the roadway was not in good 

condition and that there were several areas of deteriorated pavement along SR 585. In 

addition, plaintiff included a witness statement attesting to the poor condition of the 

roadway in April 2011. 

{¶6} For plaintiff to prevail on a claim of negligence, she must prove, by a 

preponderance of the evidence, that defendant owed her a duty, that it breached that 

duty, and that the breach proximately caused her 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 SR 585 prior to the afternoon of April 15, 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. 92AP1183. Plaintiff failed to provide sufficient 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 only once in the six weeks 

preceding April 15, 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 her 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 

CAITLIN DROZIN 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DISTRICT 3 

 Defendant 

Case No. 2011-09438-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: 

Caitlin Drozin Jerry Wray, Director 

2607 Oak Park Blvd. Department of Transportation 

Cuyahoga Falls, Ohio 44221 1980 West Broad Street 

 Columbus, Ohio 43223 

SJM/laa 

10/20 

Filed 11/2/11 

Sent to S.C. reporter 3/30/12