[Cite as Baker v. Ohio Dept. of Transp., 2015-Ohio-4861.]

IN THE COURT OF CLAIMS OF OHIO

ERIC BAKER 

Plaintiff 

v. 

OHIO DEPARTMENT OF TRANSPORTATION 

Defendant 

Case No. 2015-00187-AD 

Clerk Mark H. Reed 

MEMORANDUM DECISION 

{¶1} Plaintiff Eric Baker filed this claim on March 11, 2015 to recover damages 

which occurred when his 2011 BMW struck a chunk of asphalt that was kicked up into 

the air by another vehicle. At the time of the accident on February 12, 2015, plaintiff was 

traveling on I-90 west in Cuyahoga County, Ohio. This road is a public road maintained 

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

amount of $2,549.16. Plaintiff maintains an insurance deductible in the amount of 

$500.00. 

{¶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 his vehicle 
Case No. 2015-00187-AD - 2 - MEMORANDUM DECISION 

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. 

{¶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. 

{¶8} 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.) 

{¶9} 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. 

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

the location of the incident was at mile marker 160.0 on IR 90 west in Cuyahoga 

County. Plaintiff disputes that the accident occurred at this location, instead insisting in 

his response that the location was at mile marker 161. This section of the roadway has 

an average daily traffic count of between 75,220 and 90,670 vehicles. Despite this 

volume of traffic, the department had received no notice of loose road debris being 

present on this section of the highway. Thus, the court is unable to find that the 

department knew about the debris. Within the past six months, the department 

conducted three hundred seventeen (317) maintenance operations on IR 90 in 

Cuyahoga County. Thus, if any road debris was present for an appreciable length of 

time, it is probable that it would likely have been discovered by the department’s work 
Case No. 2015-00187-AD - 3 - MEMORANDUM DECISION 

crews, or more likely the Department would have been notified by a passing motorist of 

the hazard. Thus, it is more probable than not that the loose asphalt had only moved 

into its hazardous location very near the time plaintiff had his accident. The Department 

thus had no notice or reasonable opportunity to otherwise become aware of the hazard 

and remedy the situation. Thus, the court cannot find that the department should have 

known about this road hazard. 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. The 

plaintiff did not offer any evidence to counter what was in the defendant’s report 

regarding this element. 

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

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

IN THE COURT OF CLAIMS OF OHIO

ERIC BAKER 

Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2015-00187-AD 

Clerk Mark H. Reed 
Case No. 2015-00187-AD - 2 - MEMORANDUM DECISION 

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 

Entry cc: 

Eric Baker Jerry Wray, Director 

722 Elmwood Road Ohio Department of Transportation 

Rocky River, Ohio 44116 1980 West Broad Street 

 Mail Stop 1500 

 Columbus, Ohio 43223 

 

Filed 6/26/15 

Sent to S.C. Reporter 11/24/15