[Cite as Overfield v. Ohio Dept. of Transp., 2011-Ohio-4779.]

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

THOMAS P. OVERFIELD 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-12681-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, Thomas Overfield, filed this action against defendant, Department 

of Transportation (ODOT), contending that his 2010 Chrysler PT Cruiser was damaged 

as a proximate result of negligence on the part of ODOT in maintaining a hazardous 

condition on Interstate 75 North in Montgomery County. Specifically, plaintiff noted that 

his car was damaged when the vehicle struck a pothole in the center lane south of the 

Dayton city limits on Interstate 75 North. Plaintiff recalled that his damage incident 

occurred on November 28, 2010 at approximately 9:30 p.m. In his complaint, plaintiff 

requested damages in the amount of $1,001.31, the cost of replacement parts and 

related repair expenses. Plaintiff paid the filing fee. 

{¶2} Defendant denied liability in this matter based on the contention that no 

ODOT personnel had any knowledge of the damage-causing pothole on Interstate 75 

North prior to plaintiff’s occurrence. Defendant advised that ODOT “records indicate 

that no calls or complaints were received regarding the pothole in question” prior to 

plaintiff’s damage event. Defendant further advised that ODOT’s “investigation 

indicates that the location of plaintiff’s incident would be at state milepost 51.30 or 
county milepost 10.40 on I-75 in Montgomery County.” Defendant denied receiving any 

prior notice of the pothole at milepost 51.30 despite the fact that the particular “section 

of roadway on I-75 has an average daily traffic count between 99,440 and 113,330 

vehicles.” Defendant argued that plaintiff failed to produce any evidence to establish 

the length of time that the pothole at milepost 51.30 existed prior to 9:30 p.m. on 

November 28, 2010. 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.” 

{¶3} Defendant explained that ODOT first received notice of the pothole at 

milepost 51.30 when ODOT Montgomery County Manager, John Glover, was contacted 

by the City of Dayton Police and informed that the pothole had been patched by City of 

Dayton road crews. Apparently the problem with the pothole at milepost 51.30 was 

addressed by City of Dayton personnel after plaintiff’s damage occurrence. Defendant 

described the repair performed by City of Dayton personnel as a “temporary patch.” 

Defendant submitted an e-mail from John Glover referencing his experience with the 

pothole at milepost 51.30. Glover recorded that he received a courtesy call from the 

City of Dayton Police and was told that “they had responded and that the situation was 

temporarily secure.” Glover also recorded that, “I was checking the location on my way 

to work and began planning the repair.” 

{¶4} Defendant asserted that plaintiff failed to offer any evidence to prove that 

his car was damaged as a proximate cause of negligent roadway maintenance on the 

part of ODOT. Defendant argued that plaintiff failed to prove his property damage was 

the result of any conduct attributable to ODOT personnel. Defendant pointed out that 

ODOT “Montgomery County crews travel each state highway twice a month in 

Montgomery County and look for potholes, low berms, and other safety hazards and 

records any deficiencies on the Bi-Weekly Road Inspection Reports” (copies submitted). 

According to the submitted records, Interstate 75 North including the area around 

milepost 51.30 was last inspected prior to November 28, 2010 on November 22, 2010. 

No roadway defects (pothole) at milepost 51.30 were discovered incident to the 

November 22, 2010 inspection. Defendant related, that “if ODOT personnel had 

detected any defects they would have been promptly scheduled for repair.” 

{¶5} Plaintiff did not file a response. Plaintiff did not provide any evidence to 
establish the length of time that the particular damage-causing pothole at milepost 

51.30 on Interstate 75 North existed prior to 9:30 p.m. on November 28, 2010. 

{¶6} 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. 

{¶7} 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. 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. 

{¶8} “[C]onstructive notice is that which the law regards as sufficient to give 

notice and is regarded as a substitute for actual notice or working knowledge.” In re 

Estate of Fahle (1950), 90 Ohio App. 195, 197-198, 47 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 

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. 

{¶9} 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 length of 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. Therefore, defendant is not liable for any damage that plaintiff 

may have suffered from the roadway defect. Knight v. Ohio Dept. of Transp., Ct. of Cl. 

No. 2010-03690-AD, 2010-Ohio-6546, Williams v. Ohio Dept. Of Transp., Ct. of Cl. No. 

2010-12893-AD. 

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 

THOMAS P. OVERFIELD 
 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-12681-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 defendant. Court costs are assessed against plaintiff. 

 

 ________________________________ 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Thomas P. Overfield Jerry Wray, Director 

4224 Pleasanton Road Department of Transportation 

Englewood, Ohio 45322 1980 West Broad Street 

 Columbus, Ohio 43223 

SJM/laa 

4/14 

Filed 6/14/11 

Sent to S.C. reporter 9/21/11