[Cite as Odom v. Ohio Dept. of Transp., 2009-Ohio-7193.]

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

THAINE P. ODOM 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-07130-AD 

Clerk Miles C. Durfey 

MEMORANDUM DECISION

{¶ 1} On July 20, 2009, at approximately 3:30 p.m., plaintiff, Thaine P. Odom, 

was traveling north on Interstate 75 “just after the Monroe exit” in Warren County, when 

his automobile struck a “deep 3-5" hole in the road” causing rim damage to the vehicle. 

Plaintiff implied that the damage to his car was proximately caused by negligence on 

the part of defendant, Department of Transportation (ODOT), in failing to maintain the 

roadway free of defects such as potholes. Plaintiff filed this complaint seeking to 

recover damages in the amount of $271.15, the cost of a replacement rim. The $25.00 

filing fee was paid and plaintiff requested reimbursement of that cost along with his 

damage claim. 

{¶ 2} Defendant explained that the roadway area where plaintiff’s incident 

occurred was within the limits of a working construction project under the control of 

ODOT contractor, John R. Jurgensen Company (Jurgensen). Defendant related that 

the particular construction project “dealt with grading, draining, paving with asphalt 

concrete on I-75, interchange construction of SR 122 and bridge replacements at 

several locations in Warren County.” According to defendant, the construction project 
limits “corresponds to state mileposts 32.10 to 40.50" on Interstate 75 and plaintiff’s 

damage incident occurred “between mileposts 39.20 to 39.45 which is within the project 

limits.” Defendant asserted that this particular construction project was under the 

control of Jurgensen and consequently ODOT had no responsibility for any damage or 

mishap on the roadway within the construction project limits. Defendant argued that 

Jurgensen, by contractual agreement, was responsible for maintaining the roadway 

within the construction zone. Therefore, ODOT contended that Jurgensen is the proper 

party defendant in this action. Defendant implied that all duties such as the duty to 

inspect, the duty to warn, the duty to maintain, and the duty to repair defects were 

delegated when an independent contractor takes control over a particular section of 

roadway. Furthermore, defendant contended that plaintiff failed to introduce sufficient 

evidence to prove his damage was proximately caused by roadway conditions created 

by ODOT or its contractors. All construction work was to be performed in accordance 

with ODOT requirements and specifications and subject to ODOT approval. Also 

evidence has been submitted to establish that ODOT personnel were present on site 

conducting inspection activities. 

{¶ 3} 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. Plaintiff 

has the burden of proving, by a preponderance of the evidence, that he 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. This court, as trier of 

fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14 

Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477. 

{¶ 4} Defendant had 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. The duty of ODOT to maintain the roadway in a 

safe drivable condition is not delegable to an independent contractor involved in 

roadway construction. ODOT may bear liability for the negligent acts of an independent 

contractor charged with roadway construction. Cowell v. Ohio Department of 

Transportation, Ct. of Cl. No. 2003-09343-AD, jud, 2004-Ohio-151. Despite defendant’s 

contentions that ODOT did not owe any duty in regard to the construction project, 

defendant was charged with duties to inspect the construction site and correct any 

known deficiencies in connection with the particular construction work. see Roadway 

Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119. 

{¶ 5} Alternatively, defendant denied that neither ODOT nor Jurgensen had any 

notice of the particular pothole prior to plaintiff’s property damage event. Defendant 

pointed out that ODOT records “indicate no calls or complaints were received regarding 

the pothole in question prior to (plaintiff’s) incident. Evidence from another claim, 2009-

07288-AD, establishes the particular damage-causing pothole was present on the 

roadway at 11:00 a.m. on July 19, 2009. Defendant argued that plaintiff has failed to 

produce any evidence to prove the pothole that his car struck was attributable to any 

conduct on either the part of ODOT or Jurgensen. Defendant submitted a letter from 

Jurgensen Project Manager, Jason M. Mudd, who recalled an ODOT representative 

notified Jurgensen of a pothole at milepost 38.0 on Interstate 75 on July 22, 2009. This 

pothole was subsequently repaired according to Jurgensen records. 

{¶ 6} In order to find liability for a damage claim occurring in a construction 

area, the court must look at the totality of the circumstances to determine whether 

ODOT acted in a manner to render the highway free from an unreasonable risk of harm 

for the traveling public. Feichtner v. Ohio Dept. of Transp. (1995), 114 Ohio App. 3d 

346, 683 N.E. 2d 112. In fact, the duty to render the highway free from an 

unreasonable risk of harm is the precise duty owed by ODOT to the traveling public 

under both normal traffic and during highway construction projects. See e.g. White v. 

Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, 42, 564 N.E. 2d 462. 
{¶ 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. 

{¶ 8} 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. There is no evidence that defendant had actual notice of the 

pothole condition. Therefore, in order to recover plaintiff must produce evidence to 

prove constructive notice of the defect or negligent maintenance. 

{¶ 9} “[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, 48 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. 

{¶ 10} “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. 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. 

{¶ 11} “[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. Constructive notice of roadway potholes has been determined in multiple claims 
involving less than a twenty-four hour time frame. See McGuire v. Ohio Department of 

Transportation (2002), 2001-08722-AD; Piscioneri v. Ohio Dept. of Transportation, 

District 12; 2002-10836-AD, 2006-Ohio-2173, jud; Kill v. Ohio Department of 

Transportation, Ct. of Cl. No. 2003-01512-AD, 2003-Ohio-2620, jud; Zeigler v. 

Department of Transportation, 2003-01652-AD, 2003-Ohio-2625; Sheaks v. Ohio 

Department of Transportation, 2003-02179-AD, 2003-Ohio-2176, jud. Evidence in the 

instant claim has shown that the pothole plaintiff’s car struck was present on the 

roadway for more than twenty-eight hours prior to plaintiff’s incident. 

{¶ 12} However, in the matter of Pompignano v. Ohio Dept. of Transp., 2005-

02117-AD, jud; 2005-Ohio-3976, in a Motion for Court Review, the court concluded in 

reversing a determination by the Clerk that thirteen hours constructive notice of a defect 

was insufficient notice to invoke liability of ODOT. The court, in reversing the finding of 

constructive notice, quoted and adopted ODOT’s argument: “It is inappropriate that 

ODOT be held negligent for not patrolling every square mile of roadway every twelve 

hours. Such a ruling is against all case law created outside the limited arena of these 

administrative decisions.” (Defendant’s motion for court review, page 7). In its reversal 

order the court also recognized a constructive notice standard involving down signage. 

The court noted in finding, “that evidence of a stop sign being down for less than 24 

hours was not enough time to impute constructive notice of its condition to ODOT.” See 

Cushman v. Ohio Dept. of Transp. (1995), 91-11591, affirmed (March 14, 1996), 

Franklin App. No. 95AP-107-8844. The court, in the present claim, is required to follow 

existing precedent. Consequently, plaintiff has failed to prove sufficient constructive 

notice of the damage-causing pothole to invoke liability on that premise. See Edwards 

v. Ohio Dept. of Transp., Dist. 8, Ct. of Cl. No. 2006-01343-AD, 2006-Ohio-7173; Bross 

v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-01495-AD, 2007-Ohio-2410. Plaintiff has 

failed to prove that his property damage was connected to any conduct under the 

control of defendant, that defendant was negligent in maintaining the construction area, 

or that there was any negligence on the part of defendant or its agents. 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 

THAINE P. ODOM 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-07130-AD 

Clerk Miles C. Durfey 

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. 

 

 ________________________________ 

 MILES C. DURFEY 

 Clerk 

Entry cc: 

Thaine P. Odom Jolene M. Molitoris, Director 

68 Virginia Avenue #B Department of Transportation 

Dayton, Ohio 45410 1980 West Broad Street 
 Columbus, Ohio 43223 

RDK/laa 

12/7 

Filed 12/23/09 

Sent to S.C. reporter 4/16/10