[Cite as Thoren v. Ohio Dept. of Transp., Dist. 12, 2010-Ohio-4790.]

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

CYNTHIA L. THOREN 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DIST. 12 

 Defendant 

Case No. 2010-02871-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Cynthia L. Thoren, filed this action against defendant, Department 

of Transportation (ODOT), contending her 2005 Dodge Neon was damaged as a 

proximate cause of negligence on the part of ODOT in maintaining a hazardous 

roadway condition on State Route 44 in Geauga County. Plaintiff pointed out she 

sustained tire and wheel damage to her car when the vehicle struck “a rather large and 

deep pothole going over a bridge” on State Route 44 “a little south of the entrance to 

422 E in Auburn Township.” Plaintiff recalled the damage incident occurred on January 

19, 2010 at approximately 3:05 p.m. Plaintiff requested damage recovery in the amount 

of $526.63, the cost of replacement parts and related repair expenses she incurred 

resulting from the reported January 19, 2010 incident when her car struck the pothole 

on State Route 44. In her complaint, plaintiff suggested the particular damage-causing 

pothole was patched that same day, because she recalled, “passing some trucks that 

looked like they had been working on the roads just before I hit the bad spot in the 

road.” The filing fee was paid. 
Case No. 2010-02871-AD - 2 - MEMORANDUM DECISION

{¶ 2} Defendant denied liability based on the contention that no ODOT 

personnel had any knowledge of the particular pothole on the roadway prior to plaintiff’s 

property damage occurrence. Defendant related that ODOT phone logs show one 

complaint on October 6, 2009 of a pothole on “SR 44 SB 1.1 mile south of 1422 at 

LaDue overpass.” Defendant advised that particular pothole was patched the same day 

the complaint was received (October 6, 2009). Defendant denied having any notice 

either actual or constructive of the pothole plaintiff’s car struck on January 19, 2010, 

which ODOT located “at milepost 1.35 on SR 44 in Geauga County.” Defendant argued 

plaintiff did not offer any evidence to establish the length of time the pothole existed at 

milepost 1.35 prior to her damage event and therefore, suggested “it is likely the pothole 

existed for only a short time before the incident.” Defendant asserted plaintiff failed to 

prove her property damage was attributable to negligent maintenance on the part of 

ODOT. Defendant explained that the ODOT “Geauga County Manager inspects all 

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

were discovered in the vicinity of milepost 1.35 on State Route 44 the last time that 

section of roadway was inspected prior to January 19, 2010. The claim file is devoid of 

any copies of roadway inspection records compiled by defendant’s Geauga County 

Manager. The maintenance record (copy submitted) show ODOT conducted pothole 

patching operations on State Route 44 in the vicinity of plaintiff’s incident on October 6, 

2009, December 31, 2009, and January 19, 2010, the day the described damage event 

occurred. Pothole patching completed on January 19, 2010 was done at milepost 3.00. 

Plaintiff, in her complaint, related the pothole her vehicle struck on State Route 44 “was 

a little south of the entrance to 422 E.” Defendant’s submitted records locate the 
entrance to US Route 422 at milepost 2.53 on State Route 44. 

{¶ 3} Plaintiff filed a response disputing the contention that ODOT did not have 

notice of the pothole her car struck. Plaintiff noted the damage-causing pothole “went 

all the way across the bridge” on State Route 44 that spans US Route 422. Plaintiff 

reasserted that she noticed ODOT personnel conducting pothole patching on State 

Route 44 “a mile or so before the bridge.” Plaintiff contended the fact ODOT personnel 

were in the area at the time of her incident constitutes sufficient evidence of notice to 

invoke liability on the part of defendant for her damage. Plaintiff also contended that the 

particular pothole existed for an extended period of time due to the immense size of the 

defect. Plaintiff implied defendant acted negligently in conducting roadway inspections. 

{¶ 4} 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. 

{¶ 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 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. 

{¶ 7} 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. Evidence tends to indicate defendant in the instant claim had 

notice of the pothole plaintiff’s car struck and failed to reasonably respond. The fact that 

ODOT crews were patching potholes on State Route 44 in the immediate vicinity of 

plaintiff’s damage incident and at the same time as the damage incident constitutes 

evidence of notice. See Lorek v. Ohio Dept. of Transp. (1999), 99-06472-AD, also 

Reaves v. Dept. of Transp. (1999), 99-03449-AD. Based on the rationale of Denis, the 

court concludes defendant is liable to plaintiff for all damages claimed, $526.63, plus the 

$25.00 filing fee costs. Bailey v. Ohio Department of Rehabilitation and Correction 

(1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990. 

 

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 

CYNTHIA L. THOREN 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DIST. 12 
 Defendant 

Case No. 2010-02871-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 plaintiff in the amount of $551.63, which includes the filing fee. Court costs are 

assessed against defendant. 

 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Cynthia L. Thoren Jolene M. Molitoris, Director 

1867 Sheridan Avenue N.E. Department of Transportation 

Warren, Ohio 44483 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

5/24 

Filed 6/8/10 

Sent to S.C. reporter 10/1/10