[Cite as Falk v. Ohio Dept. of Transp., 2011-Ohio-6978.]

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

KATHY FALK, et al. 

 Plaintiffs 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2011-08261-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiffs, Kathy and Charles Falk, filed this action against defendant, Ohio 

Department of Transportation (ODOT), contending that their vehicle was damaged as a 

proximate result of negligence on the part of ODOT in maintaining a hazardous 

condition on State Route 3. In the complaint, Kathy Falk described the particular 

damage event noting that she “was driving south on Route 3 (Ledge Road) and came to 

a curve in the road at the intersection of Route 606 where I hit a pothole.” Ms. Falk 

recalled the incident occurred on May 27, 2011, at approximately 5:00 p.m. Plaintiffs 

seek recovery of damages in the amount of $207.09, the stated total amount for a 

replacement tire. 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 the 

damage incident. Defendant related that the pothole was located at milepost 20.66 on 

SR 3 in Medina County. Defendant denied receiving any prior calls or complaints 

about a pothole or potholes in the vicinity of that location. Defendant asserted that 

plaintiffs did not offer any evidence to establish the length of time the pothole existed on 

SR 3 prior to the incident. Additionally, defendant contended that plaintiffs 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 Ms. Falk’s incident the last 

time that section of roadway was inspected prior to May 27, 2011. 

{¶3} Defendant argued that plaintiffs have failed to offer any evidence to prove 

their 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 four (4) pothole patching operations 

were conducted in the general location as plaintiff’s incident.” 

{¶4} Plaintiff Kathy Falk filed a response essentially reiterating the allegations 

contained in her complaint. 

{¶5} For plaintiffs to prevail on a claim of negligence, they must prove, by a 

preponderance of the evidence, that defendant owed them a duty, that it breached that 

duty, and that the breach proximately caused their 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, plaintiffs 

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 3 prior to May 27, 2011. 

{¶8} Therefore, to find liability, plaintiffs 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 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. 

{¶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. Plaintiffs submitted pictures of the intersection at SR 3 and SR 

606 which depict at least three circular roadway defects and surrounding areas where 

patching attempts had been previously conducted. 

{¶11} In order for plaintiffs to establish liability on the part of defendant, they 

must provide 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 

demonstrative evidence in the present claim that the pothole Ms. Falk’s car struck had 
been previously patched. However, there is no record referencing the last time the 

specific pothole was patched prior to May 27, 2011 or the number of times the pothole 

was patched before that date. 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. Plaintiffs have failed to prove when the pothole that damaged their 

car had been previously patched or that the patching material was subject to rapid 

deterioration. See Kremser v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-01908-AD, 

2007-Ohio-3100 (holding plaintiff had not provided evidence to prove that the pothole 

which his vehicle struck had been previously patched and had rapidly deteriorated). 

Plaintiffs have not proven negligent maintenance by providing evidence of multiple 

repairs. Plaintiffs have 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. 

Therefore, defendant is not liable for any damage plaintiffs may have suffered from the 

pothole. Consequently, plaintiffs’ 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 

KATHY FALK, et al. 

 Plaintiffs 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2011-08261-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 plaintiffs. 

 

 ________________________________ 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Kathy Falk Jerry Wray, Director 

Charles Falk Department of Transportation 

4896 Gateway Drive 1980 West Broad Street 

Medina, Ohio 44256 Columbus, Ohio 43223 

9/13 

Filed 9/28/11 

Sent to S.C. reporter 2/6/12