[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