[Cite as Stenger v. Ohio Dept. of Transp., 2011-Ohio-5310.]



                                       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




THOMAS A. STENGER

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-02727-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     On February 9, 2011, at approximately 5:45 a.m., plaintiff, Thomas
Stenger, was traveling east on State Route 18 “about 150 yards past the Interstate 77
overpass in Summit County” when his 2009 Nissan Maxima “struck a pothole with the
driver’s side front wheel and tire.” Plaintiff related that upon impact, “the tire blew out
and my front windshield cracked about 10 inches up from the dash.” Plaintiff submitted
photographs depicting the damage-causing pothole.                 Based upon a review of the
photographs, it appears that the pothole had been previously patched at some
undetermined time and the patching material had completely deteriorated forming a
very deep rectangular roadway defect.                 The roadway area around the pothole and
extending down the lane of travel for several feet shows signs of pavement deterioration
along with other repaired areas.
        {¶2}     Plaintiff asserted that the damage to his car was proximately caused by
negligence on the part of defendant, Department of Transportation (DOT), in failing to
adequately maintain the roadway free of defects. Plaintiff filed this complaint seeking to
recover $871.64, the stated cost of a tire and wheel, as well as other related automotive
repairs. The filing fee was paid.
       {¶3}   Defendant denied liability based on the contention that no DOT personnel
had any knowledge of the particular damage-causing pothole prior to the February 9,
2011 incident. Defendant noted that DOT records show no prior calls or complaints
were received about the pothole, which defendant located “near milepost 1.90 on SR 18
in Summit County.” Defendant asserted that plaintiff did not produce any evidence to
establish the length of time the pothole near milepost 1.90 existed before February 9,
2011 and 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.” Defendant
explained that the DOT “Summit 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 near milepost 1.90 on State Route 18 the last
time that section of roadway was inspected prior to February 9, 2011. Defendant did
not provide any inspection records. Defendant stated that, “[a] review of the six-month
maintenance history [record submitted] for the area in question reveals that seven (7)
pothole patching operations were conducted in the general vicinity of plaintiff’s incident”
and there “were two more repairs on February 11, 2011, which shows that ODOT
responded after plaintiff called in this location.” (Emphasis added.)
       {¶4}   Defendant’s maintenance records for State Route 18 verify that six of the
seven repairs in the vicinity of plaintiff’s incident took place in December 2010. ODOT
crews patched potholes there on December 16, twice on December 21, and three more
times on December 29, 2010. Patching operations were also performed near milepost
1.90 on February 4, 2011.
       {¶5}   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. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he suffered a loss
and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio
State University (1977), 76-0368-AD. 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, 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.
       {¶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 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 defendant’s “Maintenance History” reflects pothole
repairs were made in the vicinity of plaintiff’s incident several times in the weeks
preceding February 9, 2011, supports a finding of negligent maintenance of the
roadway on the part of ODOT.       See Maynard v. Ohio Dept. of Transp., 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.
       {¶9}    Based upon the numerous roadway patching operations performed near
milepost 1.90 during the fifty-day period preceding plaintiff’s incident, the trier of fact
also finds defendant had constructive notice of the pothole at milepost 1.90 on State
Route 18. “[C]onstructive notice is that which the law regards as sufficient to give notice
and is regarded as a substitute for actual notice or knowledge.” In re Estate of Fahle
(1950), 90 Ohio App. 195, 197-198, 47 O.O. 231, 105 N.E. 2d 429.               “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.          In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, 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; Gerlarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
       {¶10} Plaintiff has provided sufficient photographic evidence to establish that the
damage-causing defect was massive in both size and depth, and constituted a recurring
problem defendant failed to properly correct. Ordinarily size of a defect (pothole) 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. However, the massive
size of a defect coupled with knowledge that the pothole presented a recurring problem
is sufficient to prove constructive notice. See Fite v. Ohio Dept. of Transp., Ct. of Cl.
No. 2009-05757, 2009-Ohio-7124, ¶10.
       {¶11} Additionally, plaintiff has produced evidence to infer defendant maintains
the roadway negligently. Denis. The credibility of witnesses and the weight attributable
to their testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10
Ohio St. 2d 230, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The
court is free to believe or disbelieve, all or any part of each witness’s testimony. State v.
Antill (1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court does not
find defendant’s assertions persuasive that the roadway was adequately maintained.
Conversely, the trier of fact finds plaintiff’s assertions persuasive in regard to the
contentions that the roadway was not adequately maintained.
       {¶12} The photographs submitted show that the particular damage-causing
pothole was formed when an existing patch deteriorated. This fact alone does not
provide conclusive proof of negligent maintenance. A pothole patch that deteriorates in
less than ten days is prima facie evidence of negligent maintenance. See Matala v.
Ohio Department of Transportation, 2003-01270-AD, 2003-Ohio-2618. According to the
investigation report submitted by defendant, plaintiff’s vehicle was damaged by a
pothole located in an area that had been patched as recently as February 4, 2011, and
the repairs had failed by February 9, 2011.
      {¶13} The fact that the pothole plaintiff’s car struck deteriorated in a time frame
of less than five days warrants application of the standard expressed in Matala; Fisher
v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-04869-AD, 2007-Ohio-5288. See also
Romes v. Ohio Dept. Of Transp., Ct. of Cl. No. 2008-01286-AD, 2008-Ohio-4624.
Negligence in this action has been proven and defendant is liable to plaintiff for all
damages claimed, $871.64, plus the $25.00 filing fee costs. Bailey v. Ohio Department
of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.


                               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




THOMAS A. STENGER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2011-02727-AD

Acting 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 plaintiff in the amount of $896.64, which includes the filing fee. Court costs are
assessed against defendant.




                                       DANIEL R. BORCHERT
                                       Acting Clerk

Entry cc:

Thomas A. Stenger                      Jerry Wray, Director
22 Westwick Way                        Department of Transportation
Copley, Ohio 44321                     1980 West Broad Street
                                       Columbus, Ohio 43223
SJM/laa
6/9
Filed 7/18/11
Sent to S.C. reporter 10/13/11
