[Cite as Krendl v. Ohio Dept. of Transp., 2010-Ohio-4956.]

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

STEVE KRENDL 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-09736-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Steve Krendl, filed this action against defendant, Department of 

Transportation (ODOT), contending that his 2006 BMW 330I was damaged as a 

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

roadway condition on Interstate 270 in Franklin County. Specifically, plaintiff noted the 

right front tire on his vehicle was damaged when it struck a large pothole, “on the 

Cleveland Avenue exit ramp from I-270 W in Columbus on the middle to right portion of 

the road.” Plaintiff recalled his damage incident occurred at approximately 3:00 p.m. on 

December 6, 2009. Plaintiff seeks damage recovery in the amount of $329.17, the cost 

of 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 

plaintiff’s December 6, 2009 described incident. Defendant advised ODOT records 

show no complaints of a pothole were received at the location on Interstate 270 

described by plaintiff (milepost 27.35). Defendant noted the particular section of 

roadway, “has an average daily traffic count between 124,950 and 151,700 vehicles,” 
yet no prior complaints were received regarding a pothole at milepost 27.35 on 

Interstate 270. Defendant suggested, “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.” 

Defendant asserted that plaintiff failed to offer any evidence to prove his property 

damage was attributable to ODOT personnel. Defendant contended plaintiff failed to 

prove his property damage was proximately caused by negligent maintenance on the 

part of ODOT. Defendant explained that the ODOT “Franklin 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 at milepost 27.35 

on Interstate 270 the last time that section of roadway was inspected before December 

6, 2009. Defendant’s maintenance records show “that three (3) pothole patching 

operations were conducted in the general vicinity of plaintiff’s incident.” during the sixmonth period prior to December 6, 2009. The maintenance record (copy submitted) 

indicates ODOT crews patched potholes in the area including milepost 27.35 on June 

10, 2009, September 8, 2009, and September 16, 2009. Defendant contended plaintiff 

failed to produce evidence to establish the length of time the particular pothole existed 

prior to 3:00 p.m. on December 6, 2009. Defendant stated that “if ODOT personnel had 

detected any defects they would have been promptly scheduled for repair.” 

{¶ 3} To prevail on a claim of negligence, plaintiff 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. 

{¶ 4} 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. 

{¶ 5} 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 defendant had actual notice of the pothole 

on Interstate 270 prior to December 6, 2009. 

{¶ 6} 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. 

{¶ 7} 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, 31 Ohio Misc. 2d 1, 31 

OBR 64, 507 N.E. 2d 1179. “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. 

{¶ 8} 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 that defendant’s “Maintenance History” reflects pothole 

repairs were made in the vicinity of plaintiff’s incident on various occasions does not 

prove negligent maintenance of the roadway on the part of ODOT. 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 condition. 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. 

{¶ 9} In the instant claim, plaintiff has failed to introduce sufficient evidence to 

prove that defendant maintained a known hazardous roadway condition. Plaintiff failed 

to prove his property damage was connected to any conduct under the control of 

defendant, 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 

STEVE KRENDL 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 
 Defendant 

Case No. 2009-09736-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: 

Steve Krendl Jolene M. Molitoris, Director 

1621 Cardiff Road Department of Transportation 

Upper Arlington, Ohio 43221 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

5/14 

Filed 6/11/10 

Sent to S.C. reporter 10/11/10