[Cite as Gray v. Ohio Dept. of Transp., 2011-Ohio-4799.]

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

ELIZABETH GRAY 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-03308-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, Elizabeth Gray, filed this action against defendant, Department of 

Transportation (ODOT), contending that her vehicle was damaged on February 22, 

2011, at approximately 9:05 a.m. as a proximate result of negligence on the part of 

ODOT in maintaining a hazardous condition on Interstate 71 South in Franklin County. 

Specifically, plaintiff asserted that her right front wheel was damaged as a result of 

striking a pothole which she stated was “located in the middle of the I-71 southbound 

roadway around the 106 milepost before the I-70 westbound split.” In her complaint, 

plaintiff requested damage recovery of $204.33, the stated cost for automotive repairs. 

The $25.00 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 incident. Defendant advised that no complaints of a pothole were received at 

the location on Interstate 71 described by plaintiff which “is near county milepost 15.26 

or state milepost 106.33 on I-71 in Franklin County.” Defendant contended that plaintiff 

did not produce any evidence to establish the length of time the pothole at milepost 
106.33 on Interstate 71 existed prior to her February 22, 2011 damage occurrence. 

{¶3} Furthermore, defendant contended that plaintiff failed to offer evidence to 

prove that ODOT negligently maintained the roadway. Defendant asserted that plaintiff 

has not shown her property damage was attributable to conduct on the part of ODOT 

personnel. Defendant explained that the ODOT “Franklin County Manager inspects all 

state roadways within the county at least two times a month.” Apparently, no potholes 

were discovered at milepost 106.33 on Interstate 71 the last time that particular section 

of roadway was inspected prior to February 22, 2011. The claim file is devoid of any 

inspection record. Defendant did submit a copy of the “Maintenance History” for 

Interstate 71 in Franklin County covering the dates from September 27, 2010 to 

February 22, 2011. This record shows that ODOT crews patched potholes in the area 

including milepost 106.33 on November 30, 2010, January 26, 2011, and January 31, 

2011. 

{¶4} On May 16, 2011, plaintiff filed a response arguing that defendant should 

bear liability for the damage to her car. 

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

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

duty, and that the breach proximately caused her 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 she 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. 

{¶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, 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. 

{¶8} “[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, 47 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. No. 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. 

{¶9} 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. 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 that plaintiff may have suffered from 

the roadway defect. 

 
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 

ELIZABETH GRAY 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-03308-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: 

Elizabeth Gray Jerry Wray, Director 

2833 Indianola Avenue Department of Transportation 

Columbus, Ohio 43202 1980 West Broad Street 

 Columbus, Ohio 43223 

SJM/laa 

5/17 

Filed 6/15/11 

Sent to S.C. reporter 9/21/11