[Cite as VanFossen v. Ohio Dept. of Transp., 2015-Ohio-4941.]

LISA VANFOSSEN 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF 

TRANSPORTATION 

 Defendant 

Case No. 2015-00177-AD 

Clerk Mark H. Reed 

MEMORANDUM DECISION 

{¶1} Plaintiff Lisa VanFossen filed this claim on March 9, 2015 to recover 

damages which occurred when her vehicle struck a large boulder on January 21, 2015 

while traveling on St. Rt. 266 South in Morgan County Ohio. This road is a public road 

maintained by the Ohio Department of Transportation. Plaintiff’s vehicle sustained 

damages in the amount of $323.99. Plaintiff maintains a collision insurance deductible 

of $250.00. 

{¶2} In order to recover on a claim for roadway damages against the Ohio 

Department of Transportation, Ohio law requires that a motorist/plaintiff prove all of the 

following: 

{¶3} That the plaintiff’s motor vehicle received damages as a result of coming 

into contact with a dangerous condition on a road maintained by the defendant. 

{¶4} That the defendant knew or should have known about the dangerous road 

condition. 

{¶5} That the defendant, armed with this knowledge, failed to repair or remedy 

the dangerous condition in a reasonable time. 

{¶6} In this claim, the Court finds that the plaintiff did prove that her vehicle 

received damages and that those damages occurred as a result of the plaintiff’s vehicle 

coming into contact with a dangerous condition on a road maintained by the defendant. 
Case No. 2015-00177-AD -2- MEMORANDUM DECISION 

{¶7} The next element that a plaintiff must prove to succeed on a claim such as 

this is to show that the defendant knew or should have known about this dangerous 

condition. Based on the evidence presented, the Court is unable to find that the 

defendant had actual knowledge of the dangerous condition. Likewise, the Court is 

unable to find that the defendant should have known about this dangerous condition 

and thus would have had constructive notice about the highway danger. Constructive 

notice is defined as “(n)otice arising from the presumption of law from the existence of 

facts and circumstances that a party has a duty to take notice of...Notice presumed by 

law to have been acquired by a person and thus imputed to that person.” (Black’s Law 

Dictionary at 1090 8th Ed. 2004.) 

{¶8} In order for there to be constructive notice, a plaintiff must prove that 

sufficient time has passed after the dangerous condition first appears, so that under the 

circumstances the defendant should have gained knowledge of its existence. This, the 

plaintiff has been unable to do. 

{¶9} In the Investigation Report filed May 26, 2015 the defendant stated that the 

location of the incident was on SR 266 in Morgan County, 0.3 miles south of mile 

marker 15. This section of the roadway has an average daily traffic count of between 

650 and 680 vehicles. Despite this volume of traffic, the department had received no 

notice of debris/boulders on this road thus, the Court is unable to find that the 

department knew about the boulders. Within the past six months, the department had 

also conducted fifty-one (51) maintenance operations on SR 266 in Morgan County 

without discovering any debris or boulders. A review of the inspections performed by 

ODOT and submitted to the Court does not show a report of these boulders. If a 

boulder was on the roadway for any appreciable length of time, it is probable that it 

would likely have been discovered by the department’s work crews. Thus, the Court 

cannot find that the department should have known about this debris. 
Case No. 2015-00177-AD -3- MEMORANDUM DECISION 

{¶10} Under Ohio law, the burden of proof in civil claims like this one rests on the 

plaintiff. Admittedly, this places a difficult task on a plaintiff in a claim like this against 

ODOT. However, this is the law that is binding on this Court at the present time. 

{¶11} Finally, the law in Ohio is that the department is not an absolute insurer of 

a motorist’s safety on the highway. The department is only liable for damage when the 

Court finds that it was negligent. This the Court is unable to do. 

{¶12} Since the plaintiff is unable to prove that the defendant knew or should 

have known about this dangerous condition, the claim must fail. 

 

LISA VANFOSSEN 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF 

TRANSPORTATION 

 Defendant 

Case No. 2015-00177-AD 

Clerk Mark H. Reed 

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.

 

 MARK H. REED 

 Clerk 

 

 
Case No. 2015-00177-AD -4- MEMORANDUM DECISION 

Entry cc: 

Lisa VanFossen 

3450 St. Rt. 792 

Stockport, Ohio 43787 

Jerry Wray, Director 

Ohio Department Of Transportation 

1980 West Broad Street 

Mail Stop 1500 

Columbus, Ohio 43223 

Filed 8/25/15 

Sent to S.C. Reporter 11/30/15