[Cite as Ross v. Ohio Dept. of Transp., Dist. 12, 2010-Ohio-6676.]

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

EDWARD V. ROSS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12 

 Defendant 

Case No. 2010-08071-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Edward V. Ross, filed this action against defendant, Department 

of Transportation (ODOT), contending that his Honda motorcycle 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 that: “[w]as traveling home from work on Monday May 

24th, 2010 leaving BMW Cleveland at Soon center & 422 going west on 422 to the 271 

northbound exit, at the bottom of the 271 North on ramp I encountered a huge pothole 

that was unavoidable.” The impact of striking the pothole caused substantial damage to 

plaintiff’s motorcycle. Plaintiff related that he subsequently discovered that several 

employees and customers at his place of work had sustained damage to their vehicles 

from striking the same pothole that caused his damage. In his complaint, plaintiff 

requested damages in the amount of $500.00, his insurance coverage deductible for 

motorcycle repair costs. The filing fee was paid. 

{¶ 2} Defendant denied liability based on he contention that no ODOT 

personnel had any knowledge of any roadway defects on Interstate 271 prior to 

plaintiff’s May 24, 2010 incident. Defendant related that ODOT’s “investigation indicates 
that the location of Plaintiff Ross’ 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 over 

132,000 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 5:15 p.m. on May 24, 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 24, 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. 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, 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 24, 2010. 

{¶ 7} Therefore, to find liability, plaintiff must prove that 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 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. 92AP1183. 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 pothole 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 condition. 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 

EDWARD V. ROSS 

 Plaintiff 

 v. 
OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12 

 Defendant 

Case No. 2010-08071-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: 

Edward V. Ross Jolene M. Molitoris, Director 

740 E. 249th Street Department of Transportation 

Euclid, Ohio 44123 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

11/3 

Filed 11/23/10 

Sent to S.C. reporter 2/18/11