[Cite as Hinzman v. Ohio Dept. of Transp., Dist. 6, 2010-Ohio-4792.]

                                       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




CHARLES L. HINZMAN

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6

       Defendant

        Case No. 2010-03118-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} On February 12, 2010, at approximately 3:45 p.m., plaintiff, Charles L.
Hinzman, was traveling south on US Route 23 crossing an overpass to merge onto
Interstate 270 East in Franklin County, when his 2002 Chrysler PT Cruiser struck a
large pothole causing tire damage to the vehicle. Plaintiff asserted that the damage to
his car was proximately caused by negligence on the part of defendant, Department of
Transportation (ODOT), in failing to maintain the roadway free of defects such as
potholes.      Plaintiff filed this complaint seeking to recover $260.33, the cost of
replacement parts and related repair expense incurred resulting from striking the
pothole on US Route 23 on February 12, 2010. 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 February 12, 2010 described occurrence.                    Defendant advised that ODOT
records show no complaints of a pothole were received at the location on US Route 23
South provided by plaintiff (milepost 22.91). Defendant did submit documentation that
seven complaints of potholes on US Route 23 were received on various dates from
January 13, 2010 to February 12, 2010, the date of plaintiff’s incident. The complaint
received on February 12, 2010 reported a pothole on US Route 23 at the “southbound
bridge over Interstate 270 far right lane.” Defendant’s submitted documentation that
specifically located this pothole at milepost 23.0, a location that roughly corresponds to
the location of plaintiff’s incident, milepost 22.91. The approximate time the February
12, 2010 complaint was received was not provided. Defendant pointed out that the
section of roadway of US Route 23 at milepost 22.91 “has an average daily traffic count”
of over 70,000 vehicles, yet no complaints were received regarding a pothole at that
location prior to plaintiff’s occurrence. Defendant asserted that plaintiff has not offered
any evidence to establish the length of time that the pothole at milepost 22.91 existed
before 3:45 p.m. on February 12, 2010. 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} Furthermore, defendant contended that plaintiff did not offer any evidence
to prove the roadway was negligently maintained.           Defendant related that ODOT
“Franklin County Manager conducts inspections on all state roadways within the county
on a routine basis, at least one to two times a month.” Defendant contended that
plaintiff has not provided any evidence to prove that his property damage was caused
by any conduct attributable to ODOT personnel. Defendant submitted records show
that ODOT personnel patched potholes in the vicinity of plaintiff’s incident on January
25, 2010. Defendant observed that the particular section of roadway “was in relatively
good condition at the time of plaintiff’s incident.”
       {¶ 4} Plaintiff filed a response implying that the pothole his car struck had
probably existed for some length of time prior to his incident due to the fact that “there
wasn’t any chunks in the hole that caused a hard hit.” Plaintiff argued that defendant
was negligent by not conducting more frequent inspections of the roadway. Plaintiff
stated that “[a] better job could and should have been done maintaining these roads.”
       {¶ 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.       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.
       {¶ 6} 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 that defendant had actual notice of the
pothole.    Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the pothole must be presented.
       {¶ 7} “[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, 48 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; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
       {¶ 8} 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 pothole
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458. No evidence was presented to establish the time that the
particular pothole was present. Size of the 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. Plaintiff has failed to prove that defendant had constructive
notice of the pothole.
       {¶ 9} Plaintiff may establish liability on the part of defendant by providing
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 some evidence in the
present claim that the pothole plaintiff’s car struck had been previously patched on
January 25, 2010 and the patch had deteriorated. However, evidence proving plaintiff’s
car struck a deteriorated repair 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,
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.
Plaintiff has failed to prove that the pothole that damaged his car had been previously
patched or was patched with material subject to rapid deterioration since the last
previous pothole repair made by ODOT in the vicinity of his incident was on January 25,
2010. Furthermore, plaintiff also failed to establish the general time frame when the
roadway condition encountered initially appeared. Plaintiff, in the instant claim, has 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.
                               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




CHARLES L. HINZMAN

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6

      Defendant

      Case No. 2010-03118-AD

Clerk Miles C. Durfey


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.



                                                ________________________________
                                                MILES C. DURFEY
                                                Clerk

Entry cc:
Charles L. Hinzman              Jolene M. Molitoris, Director
145 Oak Drive                   Department of Transportation
Little Hocking, Ohio 45742      1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
5/18
Filed 6/4/10
Sent to S.C. reporter 10/1/10
