[Cite as Donohue v. Ohio Dept. of Transp., Dist. 2, 2011-Ohio-5116.]

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

WILLIAM A. DONOHUE 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DISTRICT 2 

 Defendant 

Case No. 2011-02328-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, William Donohue, filed this action against defendant, Department 

of Transportation (ODOT), asserting that his 2007 Volkswagon Jetta was damaged as a 

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

roadway condition on Interstate 475 in Toledo, Ohio. Plaintiff related that he was 

traveling east on Interstate 475 on December 13, 2010, at 8:00 p.m. when his vehicle 

struck a pothole “just past the Upton bridge.” Plaintiff pointed out that the driver’s side 

tires and rims were destroyed as a result of the impact. Plaintiff requested damages in 

the amount of $551.34, the total cost of two replacement tires, car rental, and taxi fare 

to and from the Toledo airport while his car was being repaired. The filing fee was paid. 

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

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

ODOT contractor E.S. Wagner Company (Wagner). Defendant related that the 

particular construction project dealt with improvements to a section of roadway “by 

grading, draining, paving with stone matrix asphalt concrete on an asphalt concrete 

base.” According to defendant, the construction project limits “are county mileposts 
14.18 to 16.20 on I-475 in Lucas County” and plaintiff’s damage incident occurred at 

milepost 15.38, a location within the construction area limits. Defendant asserted that 

this particular construction project was under the control of Wagner and consequently 

ODOT had no responsibility for any damage or mishap on the roadway within the 

construction project limits. 

{¶3} Defendant argued that Wagner, by contractual agreement, was 

responsible for maintaining the roadway within the construction zone. Therefore, ODOT 

contended that Wagner 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 onsite conducting inspection activities. 

{¶4} Plaintiff did not file a response. 

{¶5} 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. 
{¶6} 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. 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. 00AP1119. 

{¶7} Alternatively, defendant denied that either ODOT or Wagner had any 

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

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

regarding a pothole prior to Plaintiff Donohue’s incident.” Defendant contended plaintiff 

failed to offer any evidence of negligent roadway maintenance on the part of ODOT and 

failed to produce evidence to establish his property damage was attributable to conduct 

on either the part of ODOT or Wagner. 

{¶8} Defendant submitted a letter from Wagner’s General Counsel, Kent 

Huber, who recorded, “the pothole and debris originated in the evening on December 

13, 2010 from pavement that was located on eastbound IR-475 near Upton Ave. First, 

E.S. Wagner Company was not negligent in failing to identify a latent defect in the 

pavement which did not manifest itself until E.S. Wagner personnel had completed their 

operations for the day and were no longer on the project site. * * * E.S. Wagner 

Company is not responsible for the property damage incurred by the claimants on 

December 13, 2010.” 

{¶9} 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. 

{¶10} 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. 

{¶11} 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. Therefore, in order to recover plaintiff must produce evidence to prove 

constructive notice of the defect or negligent maintenance. 

{¶12} “[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, 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. 

{¶13} The trier of fact is precluded from making an inference of defendant’s 

constructive notice, unless evidence is presented in respect to the time the defective 

condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 

262, 577 N.E. 2d 458. 

{¶14} In order for there to be constructive notice, plaintiff must show 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. Size of the defect 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. “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. No evidence has shown ODOT 

had constructive notice of the pothole. 

{¶15} 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. 

Plaintiff has failed to prove that his damage was proximately caused by any negligent 

act or omission on the part of ODOT or its agents. See Wachs v. Dept. of Transp., Dist. 

12, Ct. of Cl. No. 2005-09481-AD, 2006-Ohio-7162; Nicastro v. Ohio Dept. of Transp., 

Ct. of Cl. No. 2007-09323-AD, 2008-Ohio-4190.
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 

WILLIAM A. DONOHUE 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DISTRICT 2 

 Defendant 

Case No. 2011-02328-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: 

William A. Donohue Jerry Wray, Director 

416 W. Dill Drive Department of Transportation 

DeWitt, Michigan 48820 1980 West Broad Street 

 Columbus, Ohio 43223 

SJM/laa 

4/29 

Filed 6/29/11 

Sent to S.C. reporter 10/4/11