[Cite as Stoller v. Ohio Dept. of Transp., 2011-Ohio-3967.]



                                       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




KLAE STOLLER

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2011-01305-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Klae Stoler, 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 Interstate
76. In his complaint, plaintiff described the particular damage event noting that he was
traveling westbound entering the highway from State Route 94 when he noticed a
pothole “about 5' long and 6" deep. There were cars all around me so I couldn’t swerve
so I hit the hole at about 55 mph and blew the tire and bent the rim.” Plaintiff seeks
recovery of damages in the amount of $475.13, the stated total amount for replacement
parts and vehicle repair costs. 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 on December 11, 2010, on I-76 “at
milepost 9.76 in Medina 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 on I-76 has an average daily traffic count” of over 35,000
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 9.76 on I-76 prior to
plaintiff’s incident. 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
“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 plaintiff’s incident the last time that section of
roadway was inspected prior to December 11, 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 stated that, “[a] review of the six-month maintenance history
[record submitted] for the area in question reveals that no (0) pothole patching
operations were conducted at this specific” location. Defendant noted, “that if ODOT
personnel had detected any defects they would have been promptly scheduled for
repair.”
       {¶ 4} Plaintiff did not file a response.
       {¶ 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. 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 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 I-76 prior to December 11, 2010.
      {¶ 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 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. 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.
       {¶ 11} 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




KLAE STOLLER

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-01305-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:

Klae Stoller                                      Jerry Wray, Director
7328 Easton Road                                  Department of Transportation
Sterling, Ohio 44276                              1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
4/20
Filed 5/5/11
Sent to S.C. reporter 8/10/11
