[Cite as Zinnecker v. Ohio Dept. of Transp., 2011-Ohio-6909.]

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

ADAM ZINNECKER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant

Case No. 2011-06005-AD 

Acting Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, Adam Zinnecker, 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 near 7604 Montgomery Road in Cincinnati, Ohio. In his complaint, plaintiff 

described the particular damage event noting that he struck a pothole which “caused my 

tire to blow out and shredded the sidewalls as well as denting my wheel.” Plaintiff 

recalled the incident occurred on February 24, 2011, at approximately 9:00 p.m. 

Plaintiff seeks recovery of damages in the amount of $292.11, the stated total amount 

for a replacement tire 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 at milepost 10.55 

on US 22 in Hamilton 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 milepost 10.55 on US 22 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 “Hamilton 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 24, 2011. 

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 sixmonth maintenance history [record submitted] also reveals that general maintenance 

and inspection is conducted to ensure a properly maintained roadway.” 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 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 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 US 22 prior to February 24, 2011. 

{¶7} 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. 

{¶8} 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 sufficient to constitute constructive notice varies with each 

specific situation.” Danko v. Ohio Dept. of Transp. (Feb. 4, 1993), Franklin App. 92AP1183. No evidence has shown that ODOT had constructive notice of the pothole. 

{¶9} 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. 

{¶10} 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 

ADAM ZINNECKER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant

Case No. 2011-06005-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: 
Adam Zinnecker Jerry Wray, Director 

6120 Graceland Avenue Department of Transportation 

Cincinnati, Ohio 43237 1980 West Broad Street 

 Columbus, Ohio 43223 

8/4 

Filed 8/11/11 

Sent to S.C. reporter 1/3/12