[Cite as Krendl v. Ohio Dept. of Transp., 2010-Ohio-4956.]

                                       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




STEVE KRENDL

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2009-09736-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Steve Krendl, filed this action against defendant, Department of
Transportation (ODOT), contending that his 2006 BMW 330I was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
roadway condition on Interstate 270 in Franklin County. Specifically, plaintiff noted the
right front tire on his vehicle was damaged when it struck a large pothole, “on the
Cleveland Avenue exit ramp from I-270 W in Columbus on the middle to right portion of
the road.” Plaintiff recalled his damage incident occurred at approximately 3:00 p.m. on
December 6, 2009. Plaintiff seeks damage recovery in the amount of $329.17, the cost
of 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
plaintiff’s December 6, 2009 described incident.               Defendant advised ODOT records
show no complaints of a pothole were received at the location on Interstate 270
described by plaintiff (milepost 27.35).               Defendant noted the particular section of
roadway, “has an average daily traffic count between 124,950 and 151,700 vehicles,”
yet no prior complaints were received regarding a pothole at milepost 27.35 on
Interstate 270. 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.”
Defendant asserted that plaintiff failed to offer any evidence to prove his property
damage was attributable to ODOT personnel. Defendant contended plaintiff failed to
prove his property damage was proximately caused by negligent maintenance on the
part of ODOT. Defendant explained that the ODOT “Franklin 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 at milepost 27.35
on Interstate 270 the last time that section of roadway was inspected before December
6, 2009.    Defendant’s maintenance records show “that three (3) pothole patching
operations were conducted in the general vicinity of plaintiff’s incident.” during the six-
month period prior to December 6, 2009. The maintenance record (copy submitted)
indicates ODOT crews patched potholes in the area including milepost 27.35 on June
10, 2009, September 8, 2009, and September 16, 2009. Defendant contended plaintiff
failed to produce evidence to establish the length of time the particular pothole existed
prior to 3:00 p.m. on December 6, 2009. Defendant stated that “if ODOT personnel had
detected any defects they would have been promptly scheduled for repair.”
       {¶ 3} To prevail on a claim of negligence, plaintiff 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.
       {¶ 4} 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.
      {¶ 5} 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 Interstate 270 prior to December 6, 2009.
      {¶ 6} 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.
      {¶ 7} 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, 31 Ohio Misc. 2d 1, 31
OBR 64, 507 N.E. 2d 1179.        “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.
      {¶ 8} 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 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.
       {¶ 9} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained a known hazardous roadway condition. Plaintiff failed
to prove his property damage was connected to any conduct under the control of
defendant, 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




STEVE KRENDL

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION
        Defendant

        Case No. 2009-09736-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:

Steve Krendl                                     Jolene M. Molitoris, Director
1621 Cardiff Road                                Department of Transportation
Upper Arlington, Ohio 43221                      1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
5/14
Filed 6/11/10
Sent to S.C. reporter 10/11/10
