[Cite as Kovach v. Ohio Dept. of Transp., 2011-Ohio-6588.]

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

FRANK J. KOVACH 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-06161-AD 

Acting Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, Frank Kovach, filed this action against defendant, Ohio 

Department of Transportation (ODOT), contending that the vehicle he was driving was 

damaged as a proximate result of negligence on the part of ODOT in maintaining a 

hazardous condition on State Route 315 in Franklin County. In his complaint, plaintiff 

described the particular damage event noting that, “I hit a pot-hole with my right front 

tire. It was at 9:30 p.m., and in an unlighted area.” Plaintiff seeks recovery of damages 

in the amount of $386.71, the stated cost 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 February 26, 2011 incident. Upon investigation, defendant located plaintiff’s 

incident “between state mileposts 13.48 and 13.75 on SR 315 in Franklin 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 has an average 

daily traffic count” of over 17,000 vehicles. Defendant asserted that plaintiff did not offer 

any evidence to establish the length of time that any pothole existed in the vicinity of his 

incident on SR 315 prior to February 26, 2011. 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 “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 in the vicinity of plaintiff’s incident the last time that section of 

roadway was inspected prior to February 26, 2011. The claim file is devoid of any 

inspection record. Defendant argued that plaintiff has failed to offer any evidence to 

prove that 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 two (2) pothole patching 

operations were conducted but they are in the northbound direction.” Defendant noted, 

“that if ODOT personnel had detected any defects they would have been promptly 

scheduled for repair.” 

{¶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 SR 315 prior to February 26, 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} Despite the arguments presented in his July 11, 2011 response, 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 

FRANK J. KOVACH 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-06161-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: 

Frank J. Kovach Jerry Wray, Director 

387 Main Street Department of Transportation 

P.O. Box 205 1980 West Broad Street 

Smithfield, Ohio 43948 Columbus, Ohio 43223 

7/20 

Filed 8/1/11 

Sent to S.C. reporter 12/20/11