[Cite as Stolz v. Ohio Dept. of Transp., 2011-Ohio-6585.]



                                       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
CHRISTOPHER L. STOLZ

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2011-05114-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Christopher Stolz, filed this action against defendant, Ohio
Department of Transportation (ODOT), contending that his vehicle was damaged as a
proximate result of negligence on the part of ODOT in maintaining a hazardous
condition on North Main Street in Dayton, Ohio. In his complaint, plaintiff described the
particular damage event noting that he “incurred a flat tire and bent rim as a result of
hitting a pothole.” Plaintiff recalled the incident occurred on February 26, 2011, at
approximately 12:45 p.m.              Plaintiff seeks recovery of damages in the amount of
$334.17, the stated total amount for a replacement tire and wheel. 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 incident. Defendant related that plaintiff’s incident occurred at milemarker 17.4
on SR 48 in Montgomery County.                    Defendant denied receiving any prior calls or
complaints about a pothole or potholes in the vicinity of that location.                  Defendant
asserted that plaintiff did not offer any evidence to establish the length of time the
pothole existed in the vicinity of milemarker 17.4 on SR 48 prior to 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 “Montgomery County Manager inspects all state roadways within the county at
least 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 February
26, 2011. 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 stated that, “[a] review of the six-month maintenance history [record
submitted] also reveals that general maintenance and inspection is conducted to ensure
a properly maintained roadway.” Defendant’s maintenance records show potholes were
patched in the vicinity of plaintiff’s incident on January 27, 2011, February 9, 2011, and
February 23, 2011. Plaintiff did not file a response.
       {¶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
       {¶6}      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 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 48 prior to February 26, 2011.
       {¶8}    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.
       {¶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
       {¶10} 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.
       {¶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 three times in the month preceding
February 26, 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. 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
conditions.   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.
       {¶12} 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

CHRISTOPHER L. STOLZ

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2011-05114-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 defendant. Court costs are assessed against plaintiff.



                                                 ________________________________
                                                 DANIEL R. BORCHERT
                                                 Acting Clerk

Entry cc:

Christopher L. Stolz                             Jerry Wray, Director
26 S. Philadelphia Street                        Department of Transportation
Dayton, Ohio 45403                               1980 West Broad Street
                                                 Columbus, Ohio 43223


7/21
Filed 8/4/11
Sent to S.C. reporter 12/20/11
