[Cite as Falk v. Ohio Dept. of Transp., 2011-Ohio-6978.]



                                       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
KATHY FALK, et al.

       Plaintiffs

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2011-08261-AD

Deputy Clerk Daniel R. Borchert

                                     MEMORANDUM DECISION

        {¶1}     Plaintiffs, Kathy and Charles Falk, filed this action against defendant, Ohio
Department of Transportation (ODOT), contending that their vehicle was damaged as a
proximate result of negligence on the part of ODOT in maintaining a hazardous
condition on State Route 3.             In the complaint, Kathy Falk described the particular
damage event noting that she “was driving south on Route 3 (Ledge Road) and came to
a curve in the road at the intersection of Route 606 where I hit a pothole.” Ms. Falk
recalled the incident occurred on May 27, 2011, at approximately 5:00 p.m. Plaintiffs
seek recovery of damages in the amount of $207.09, the stated total amount for a
replacement tire. The 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 the
damage incident. Defendant related that the pothole was located at milepost 20.66 on
SR 3 in Medina County.              Defendant denied receiving any prior calls or complaints
about a pothole or potholes in the vicinity of that location. Defendant asserted that
plaintiffs did not offer any evidence to establish the length of time the pothole existed on
SR 3 prior to the incident. Additionally, defendant contended that plaintiffs did not offer
any evidence to prove that the roadway was negligently maintained. Defendant advised
that the ODOT “Medina 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 Ms. Falk’s incident the last
time that section of roadway was inspected prior to May 27, 2011.
       {¶3}    Defendant argued that plaintiffs have failed to offer any evidence to prove
their property damage was attributable to any conduct on the part of ODOT personnel.
Defendant stated that, “[a] review of the six-month maintenance history [record
submitted] for the area in question reveals that four (4) pothole patching operations
were conducted in the general location as plaintiff’s incident.”
       {¶4}    Plaintiff Kathy Falk filed a response essentially reiterating the allegations
contained in her complaint.
       {¶5}    For plaintiffs to prevail on a claim of negligence, they must prove, by a
preponderance of the evidence, that defendant owed them a duty, that it breached that
duty, and that the breach proximately caused their 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, plaintiffs
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
pothole on SR 3 prior to May 27, 2011.
      {¶8}   Therefore, to find liability, plaintiffs 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.
      {¶9}   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. 92AP-
1183. No evidence has shown that ODOT 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. Plaintiffs submitted pictures of the intersection at SR 3 and SR
606 which depict at least three circular roadway defects and surrounding areas where
patching attempts had been previously conducted.
      {¶11} In order for plaintiffs to establish liability on the part of defendant, they
must provide evidence of negligence maintenance. Weitzman v. Ohio Dept. of Transp.,
Ct. of Cl. No. 2008-07942-AD, jud. aff. (4-8-09), 2008-Ohio-7129.               There is
demonstrative evidence in the present claim that the pothole Ms. Falk’s car struck had
been previously patched. However, there is no record referencing the last time the
specific pothole was patched prior to May 27, 2011 or the number of times the pothole
was patched before that date. A pothole patch that deteriorates in less than ten days is
prima facie evidence of negligent maintenance. See Matala v. Ohio Department of
Transportation, Ct. of Cl. No. 2003-01270-AD, 2003-Ohio-2618. However, a pothole
patch which may or may not have deteriorated over a longer time frame does not
constitute, in and of itself, conclusive evidence of negligent maintenance. See Edwards
v. Ohio Department of Transportation, District 8, Ct. of Cl. No. 2006-01343-AD, jud,
2006-Ohio-7173. Plaintiffs have failed to prove when the pothole that damaged their
car had been previously patched or that the patching material was subject to rapid
deterioration. See Kremser v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-01908-AD,
2007-Ohio-3100 (holding plaintiff had not provided evidence to prove that the pothole
which his vehicle struck had been previously patched and had rapidly deteriorated).
Plaintiffs have not proven negligent maintenance by providing evidence of multiple
repairs. Plaintiffs have not produced sufficient 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 plaintiffs may have suffered from the
pothole. Consequently, plaintiffs’ 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




KATHY FALK, et al.

        Plaintiffs

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

Case No. 2011-08261-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 plaintiffs.



                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Kathy Falk                                        Jerry Wray, Director
Charles Falk                                      Department of Transportation
4896 Gateway Drive                                1980 West Broad Street
Medina, Ohio 44256                                Columbus, Ohio 43223
9/13
Filed 9/28/11
Sent to S.C. reporter 2/6/12
