[Cite as Legg v. Ohio Dept. of Transp., 2011-Ohio-7019.]

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

TERRY P. LEGG 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant

Case No. 2011-08938-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Terry Legg, filed this action against defendant, Ohio Department 

of Transportation (ODOT), contending ODOT's negligence in maintaining a hazardous 

condition on US 23 southbound proximately causing damage to his vehicle. 

Specifically, plaintiff asserted the transmission was damaged when the vehicle struck a 

piece of metal in the traveled portion of the roadway. Plaintiff described his damage 

incident occurred in the following manner, “[a] car passed me and I glanced at it. When 

I glanced back at the road, there was a chunk of metal laying in the road. I did not have 

time to avoid it. When I ran over it, the piece of metal tore a hole in the bottom of the 

transmission.” Plaintiff’s damage event occurred on June 2, 2011, at approximately 

6:15 p.m. In his complaint, plaintiff requested damages in the amount of $1,135.53, the 

total cost of replacement parts and related expense associated with having his car 

repaired. The $25.00 filing fee was paid. 

{¶ 2} Defendant denied liability based on the contention that no ODOT 

personnel had any knowledge of the damage-causing debris condition prior to plaintiff’s 
incident. Defendant located the debris “near county milepost 16.28 or state milepost 

32.96 on US 23 in Pike County” and advised ODOT did not receive any calls or 

complaints for debris at that location despite the fact the particular “section of roadway 

has an average daily traffic count between 14,890 and 16,180 vehicles.” Defendant 

suggested, “that the debris existed in that location for only a relatively short amount of 

time before plaintiff’s incident.” Defendant asserted plaintiff failed to establish the length 

of time the debris existed on the roadway prior to his property damage event. 

Defendant insisted no ODOT personnel had any knowledge of a metal object near 

milepost 32.96 on US 23 prior to the described incident forming the basis of this claim. 

Defendant contended plaintiff failed to establish the damage-causing debris condition 

was attributable to any conduct on the part of ODOT. Defendant related the ODOT 

“Pike County Transportation Manager, travels each state highway twice a month in Pike 

County and looks for potholes, low berms, and other safety hazards.” Apparently, no 

debris was discovered at milepost 32.96 on US 23 the last time that section of roadway 

was inspected before June 2, 2011. Defendant stated “if ODOT personnel had found 

any debris it would have been picked up.” Defendant argued plaintiff failed to produce 

evidence to show his property damage was proximately caused by negligent 

maintenance on the part of ODOT. 

{¶ 3} 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. 

{¶ 4} 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. 

{¶ 5} 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. 

{¶ 6} Defendant professed liability cannot be established when requisite notice 

of the damage-causing conditions cannot be proven. However, proof of notice of a 

dangerous condition is not necessary when defendant’s own agents actively caused 

such condition. See Bello v. City of Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at 

paragraph one of the syllabus; Sexton v. Ohio Department of Transportation (1996), 94-

13861. Plaintiff has failed to produce any evidence to prove that his property damage 

was caused by a defective condition created by ODOT or that defendant knew about 

the particular debris condition prior to 6:15 p.m. on June 2, 2011. 

{¶ 7} Ordinarily, to recover in any suit involving injury proximately caused by 

roadway conditions including debris, plaintiff must prove that either: 1) defendant had 

actual or constructive notice of the debris condition 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 provided any evidence to prove that ODOT had 

actual notice of the damage-causing condition. Therefore, in order to recover plaintiff 

must offer proof of defendant’s constructive notice of the condition or evidence to 
establish negligent maintenance. 

{¶ 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, 47 O.O. 231, 105 N.E. 2d 429. “A finding of 

constructive notice is a determination the court must make on the fact 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} Plaintiff has not produced any evidence to indicate the length of time that 

the metal debris was present on the roadway prior to the incident forming the basis of 

this claim. Also, 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 metal 

debris appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio 

Misc. 2d 262, 577 N.E. 2d 458. There is no indication that defendant had constructive 

notice of the debris on the roadway. 

{¶ 10} Plaintiff has not produced any evidence to infer defendant, in a general 

sense, maintains its highways negligently or that defendant’s acts caused the defective 

condition or conditions. Herlihy v. Ohio Department of Transportation (1999), 99-07011-

AD. 

{¶ 11} Plaintiff has failed to prove, by a preponderance of the evidence, that 

defendant failed to discharge a duty owed to plaintiff, or that plaintiff’s injury was 

proximately caused by defendant’s negligence. Plaintiff failed to show that the damagecausing object at the time of the damage incident was connected to any conduct under 

the control of defendant or any negligence on the part of defendant proximately caused 
the damage. Herman v. Ohio Dept. of Transp. (2006), 2006-05730-AD; Husak v. Ohio 

Dept. of Transp., Ct. of Cl. No. 2008-03963-AD, 2008-Ohio-5179. 
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 

TERRY P. LEGG 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2011-08938-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 concurrentl herewith, judgment is rendered in favor of 

defendant. Court costs are assessed against plaintiff. 

 ________________________________ 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Terry P. Legg Jerry Wray, Director 

1715 Coal Dock Road Department of Transportation 

Waverly, Ohio 45690 1980 West Broad Street 

 Columbus, Ohio 43223 

10/7 

Filed 10/18/11 

Sent to S.C. reporter 3/13/12