[Cite as Blakey v. Ohio Dept. of Transp., 2010-Ohio-5580.]

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

YOLONDA BLAKEY 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-02464-AD 

Clerk Miles C. Durfey 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Yolonda Blakey, filed this action against defendant, Department 

of Transportation (ODOT), contending that her 2000 Mercury Villager was damaged as 

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

condition on Interstate 270 in Franklin County. Plaintiff related that her vehicle was 

damaged “due to potholes on I-670 to 270 interchange.” Plaintiff further related that her 

vehicle subsequently struck a pothole “off the exit ramp for 5th Ave to 71 North” in 

Columbus. Plaintiff claimed that the damage to her minivan caused by striking the 

roadway defect(s) necessitated replacing the vehicle’s exhaust, wheel bearing, ball 

joints, arm bushing, and engine mounts. Plaintiff filed this complaint requesting 

damages in the amount of $741.85, the cost of replacement parts and related repair 

expenses. Plaintiff submitted a bill for automotive repair bearing the date January 14, 

2010. In her complaint, plaintiff did not provide a date of the damage incident. 

Defendant filed an investigation report noting that the damage incident described 

occurred on January 5, 2010. The filing fee was paid. 
Case No. 2006-03532-AD - 2 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 2 - MEMORANDUM DECISION

{¶ 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 explained that telephone contact was made with plaintiff 

to ascertain the date and a more specific location of her property damage occurrence. 

Defendant advised from information provided by plaintiff the date of the incident was 

January 5, 2010 and the location was determined to “be at approximately milepost 

32.92 on I-270 in Franklin County.” Defendant noted that ODOT records show no 

reports of a pothole at the location indicated prior to plaintiff’s damage event despite the 

fact “[t]his section of roadway had an average daily traffic county between 143,620 and 

158,770 vehicles.” Defendant suggested that “it is more likely than not that the pothole 

existed in that location for only a relatively short amount of time before plaintiff’s 

incident.” Defendant contended that plaintiff failed to produce any evidence to establish 

the length of time the pothole at milepost 32.92 on Interstate 270 existed prior to her 

January 5, 2010 damage occurrence. 

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

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

not shown her property damage was attributable to conduct on the part of ODOT 
Case No. 2006-03532-AD - 3 - MEMORANDUM DECISION

personnel. Defendant explained that the ODOT “Franklin County Manager conducts 

roadway inspections on all state roadways within the county on a routine basis, at least 

one to two times a month.” Apparently, no potholes were discovered at milepost 32.92 

on Interstate 270 the last time that particular section of roadway was inspected prior to 

January 5, 2010. The claim file is devoid of any inspection record. Defendant did 

submit a copy of the “Maintenance History” for Interstate 270 in Franklin County 

covering the dates from July 1, 2009 to January 5, 2010. This record shows that ODOT 

crews patched potholes in the area including milepost 32.92 on August 19, 2009, 

August 20, 2009, October 14, 2009, and November 10, 2009. No repair activity 

occurred in the area after the patching operation performed on November 10, 2009. 

Defendant stated, “that if ODOT personnel had detected any defects they would have 

been promptly scheduled for repair.” 

{¶ 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 
Case No. 2006-03532-AD - 4 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 4 - MEMORANDUM DECISION

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. 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. 
Case No. 2006-03532-AD - 5 - MEMORANDUM DECISION

{¶ 7} “[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, 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. 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. 

{¶ 8} 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. 
Case No. 2006-03532-AD - 6 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 6 - MEMORANDUM DECISION

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 

YOLONDA BLAKEY 

 Plaintiff 
Case No. 2006-03532-AD - 7 - MEMORANDUM DECISION

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-02464-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: 

Yolonda Blakey Jolene M. Molitoris, Director 

2877 Bretton Woods Drive Department of Transportation 

Columbus, Ohio 43231 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

6/16 

Filed 7/21/10 
Case No. 2006-03532-AD - 8 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 8 - MEMORANDUM DECISION

Sent to S.C. reporter 11/15/10