[Cite as Lehner v. Ohio Dept. of Transp., 2010-Ohio-6675.]

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

JUSTIN M. LEHNER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-08047-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Justin M. Lehner, filed this action against defendant, Department 

of Transportation (ODOT), contending that his Honda was damaged as a proximate 

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

Interstate 270 South in Franklin County. Specifically, plaintiff noted that the left front 

wheel and tire on his vehicle were damaged as a result of striking a pothole 

“southbound on I-270 from the 33 Exit [s]hortly past the Alum Creek Dr. exit.” Plaintiff 

recalled that the damage incident occurred on February 23, 2010 at approximately 8:30 

a.m. Plaintiff filed this complaint seeking to recover damages in the amount of $332.39, 

the total cost of replacement parts. The filing fee was paid and plaintiff requested 

reimbursement of that cost along with his damage claim. 

{¶ 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 February 23, 2010 described occurrence. Defendant located the particular 

pothole between “mileposts 49.0 to 49.2 on I-270 in Franklin County.” Defendant 

explained that ODOT records show no reports of a pothole at the location recorded prior 

to plaintiff’s damage event. Defendant related that ODOT received thirteen complaints 
of potholes on Interstate 270 “for February 22 and 23, 2010, and none of them are in 

the same location as plaintiff’s.” 

{¶ 3} Defendant argued that plaintiff did not provide any evidence to establish 

the length of time the particular pothole was present on the roadway prior to February 

23, 2010. Defendant suggested that, “it is more likely than not the pothole existed in 

that location for only a relatively short amount of time before plaintiff’s incident.” 

{¶ 4} Additionally, defendant contended that plaintiff did not offer any evidence 

to prove that the roadway was negligently maintained. Defendant advised 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 in the vicinity of plaintiff’s incident the last time that section of 

roadway was inspected prior to February 23, 2010. Defendant asserted that, “[t]he 

roadway was in relatively good condition at the time of plaintiff’s incident.” Defendant 

argued plaintiff failed to prove his 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) for the area in question reveals that no (0) 

pothole patching operations were conducted in the same location as plaintiff’s incident 

which was the southbound direction.” Defendant’s submitted records show ODOT 

crews patched potholes in the northbound lanes of Interstate 270 in the general vicinity 

of plaintiff’s incident on February 22, 2010. Defendant noted, “that if ODOT personnel 

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

{¶ 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. 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. 
{¶ 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. 

{¶ 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. 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 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. 

{¶ 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 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. 

{¶ 10} 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. The fact that defendant’s “Maintenance History” reflects pothole 

repairs were made in the vicinity of plaintiff’s incident in the northbound lanes of 

Interstate 270 on February 22, 2010 does not prove negligent maintenance of the 

roadway on the part of ODOT. 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 plaintiff may 

have suffered from the pothole. 

{¶ 11} In the instant claim, plaintiff has failed to introduce sufficient evidence to 

prove that defendant maintained a known hazardous roadway condition. Plaintiff failed 

to prove his 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 
JUSTIN M. LEHNER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-08047-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: 

Justin M. Lehner Jolene M. Molitoris, Director 

816 Forest Rose Avenue Department of Transportation 

Lancaster, Ohio 43130 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

11/2 

Filed 11/23/10 

Sent to S.C. reporter 2/18/11