[Cite as Wyne v. Dept. of Transp., 2010-Ohio-5583.]

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

MICHAEL J. WYNE 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-03169-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Michael J. Wyne, filed this action against defendant, Department 

of Transportation (ODOT), contending he suffered property damage to his 2008 Ford 

Fusion as a proximate cause of negligence on the part of ODOT in maintaining a 

hazardous condition on State Route 11 in Trumbull County. Plaintiff related he was 

traveling south on State Route 11 “just south of Route 82, approximately at mile marker 

51-52” when his vehicle struck a pothole causing tire damage. Plaintiff recalled the 

described incident occurred on January 8, 2010 at approximately 6:45 p.m. In his 

complaint, plaintiff requested damage recovery in the amount of $114.90, 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 any roadway defects on State Route 11 prior to 

plaintiff’s January 8, 2010 incident. Defendant related that ODOT’s “investigation 

indicates that the location of Plaintiff Wyne’s incident is at milepost 9.5 on SR 11 in 

Trumbull County.” Defendant denied receiving any prior calls or complaints about a 

pothole in the vicinity of that location. Defendant asserted that plaintiff did not offer any 
evidence to establish the length of time any potholes existed in the vicinity of milepost 

9.50 on State Route 11 prior to 6:45 p.m. on January 8, 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} Additionally, defendant contended that plaintiff did not offer any evidence 

to prove that the roadway was negligently maintained. Defendant advised that the 

ODOT “Trumbull 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 January 8, 2010. 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 asserted that “SR 11 was in good condition at the time and in the 

general vicinity of the plaintiff’s incident.” Defendant stated that, “[a] review of the sixmonth maintenance history (record submitted) for the area in question reveals that one 

(1) pothole patching operation was conducted in the general vicinity and it was the day 

of plaintiff’s incident.” No evidence has been produced to show the pothole plaintiff’s 

car struck had reformed after being patched. The submitted “Maintenance History” 

reflects that ODOT personnel conducted pothole patching on State Route 11 on the day 

of January 8, 2010 between mileposts 0.00 to 28.47. 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 defendant had actual notice of the pothole 

on State Route 11 prior to the night of January 8, 2010. 

{¶ 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 by simply 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. 
{¶ 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 pothole 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 the same day 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. 

{¶ 10} 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, 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 

MICHAEL J. WYNE 
 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-03169-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: 

 

Michael J. Wyne Jolene M. Molitoris, Director 

4596 S. Arlington Road Department of Transportation 

Uniontown, Ohio 44685 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

7/12 

Filed 7/28/10 

Sent to S.C. reporter 11/15/10