[Cite as Lewis v. Ohio Dept. of Transp., 2011-Ohio-6928.]

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

CHERYL LEWIS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-05700-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, Cheryl Lewis, filed this action against defendant, Ohio 

Department of Transportation (ODOT), contending that her vehicle was damaged as a 

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

condition on Hamilton Avenue. In her complaint, plaintiff described the particular 

damage event noting that she had to replace a damaged tire after she “hit a huge 

pothole.” Plaintiff recalled the damage event occurred on March 6, 2011, at 

approximately 12:30 a.m. Plaintiff seeks recovery of damages in the amount of $337.67, 

the stated total amount for a replacement tire. The filing fee was paid. 

{¶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 related that plaintiff’s incident occurred “at milepost 14.64 

on US 127 in Hamilton County.” Defendant denied receiving any prior calls or 

complaints about a pothole or potholes in the vicinity of that location. Defendant 

asserted that plaintiff did not offer any evidence to establish the length of time the 

pothole existed on US 127 prior to her incident. 
{¶3} Additionally, defendant contended that plaintiff did not offer any evidence 

to prove that the roadway was negligently maintained. Defendant advised that the 

ODOT “Hamilton County Manager inspects all state roadways within the county at least 

two times a month.” Apparently, no potholes were discovered in the vicinity of plaintiff’s 

incident the last time that section of roadway was inspected prior to March 6, 2011. The 

claim file is devoid of any inspection record. Defendant argued that plaintiff has failed to 

offer any evidence to prove her property damage was attributable to any conduct on the 

part of ODOT personnel. Defendant stated that, “[a] review of the six-month 

maintenance history [record submitted] also reveals that general maintenance and 

inspection is conducted to ensure a properly maintained roadway.” Plaintiff did not file a 

response. 

{¶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. 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. 

{¶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 conditions or defects 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 insufficient evidence that defendant had actual notice of 

the pothole on US 127 prior to March 6, 2011. 

{¶7} Therefore, to find liability, plaintiff must prove that ODOT had constructive 

notice of the defect. 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 defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio 

Misc. 2d 262, 577 N.E. 2d 458. 

{¶8} In order for there to be constructive notice, plaintiff must show 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 . 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. “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. 92AP1183. Insufficient evidence has been submitted to show that ODOT had constructive 

notice of the pothole. 

{¶9} 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 potholes 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. 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 conditions. Herlihy v. Ohio Department of Transportation (1999), 99-07011-

AD. Therefore, defendant is not liable for any damage plaintiff may have suffered from 

the pothole. 

{¶10} In the instant claim, plaintiff has failed to introduce sufficient evidence to 
prove that defendant maintained known hazardous roadway conditions. Plaintiff failed 

to prove that her property damage was connected to any conduct under the control of 

defendant, or that defendant was negligent in maintaining the roadway area, or that 

there was any actionable negligence on the part of defendant. 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 

CHERYL LEWIS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-05700-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: 

Cheryl Lewis Jerry Wray, Director 

871 Hicks Blvd. Department of Transportation 

Fairfield, Ohio 45014 1980 West Broad Street 

 Columbus, Ohio 43223 

SJM/laa 

8/18 

Filed 8/23/11 

Sent to S.C. reporter 1/19/12