[Cite as Anthony v. Ohio Dept. of Transp., 2011-Ohio-6898.]

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

HARRY MICHAEL ANTHONY 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant

Case No. 2011-05548-AD 

Acting Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, Harry Anthony, filed this action against defendant, Department of 

Transportation (ODOT), contending he suffered property damage as a proximate result 

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

71 northbound “at Trimble Ave.” Plaintiff recalled the described incident occurred on 

January 22, 2011 at approximately 10:30 p.m. Plaintiff requested damage recovery in 

the amount of $889.95, the stated total cost of replacement tires and related repair 

expenses. The filing fee was paid. 

{¶2} Defendant determined plaintiff’s incident occurred “at milepost 5.51 on I71 in Hamilton County.” Defendant denied liability based on the contention that no 

ODOT personnel had any knowledge of the particular damage-causing pothole prior to 

plaintiff’s January 22, 2011 incident. Defendant related that “[t]his section of roadway 

has an average daily traffic count” of over 110,000 vehicles. Defendant asserted 

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

existed at milepost 5.51 on I-71 prior to his 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 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 January 22, 2011. Defendant argued that plaintiff has 

failed to offer any evidence to prove his property damage was attributable to any 

conduct on the part of ODOT personnel. Defendant asserted that the roadway was “in 

relatively good condition at the time of plaintiff’s incident.” Defendant stated that, “[a] 

review of the six-month maintenance history [record submitted] for the area in question 

reveals that two (2) pothole patching operations were performed on I-71 near milepost 

5.51.” Defendant noted, “that if ODOT personnel had detected any potholes they would 

have been reported and promptly scheduled for repair.” 

{¶4} 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. 

{¶5} Defendant had 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} Defendant denied receiving any complaints before January 22, 2011, 

regarding a pothole on Interstate 71 near milepost 5.51. Plaintiff did not file a response. 

{¶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. 

{¶8} 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. Plaintiff has not submitted any evidence to establish ODOT had 

actual notice of the pothole condition prior to January 22, 2011. Therefore, in order to 

recover plaintiff must produce evidence to prove constructive notice of the defect or 

negligent maintenance. 

{¶9} “[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. 

{¶10} 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. 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. 

{¶11} 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. “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. 

{¶12} Plaintiff has not produced sufficient 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. 

{¶13} 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 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 

HARRY MICHAEL ANTHONY 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-05548-AD 

Acting 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 

 Acting Clerk 

Entry cc: 

Harry Michael Anthony Jerry Wray, Director 

458 Little Creek Drive Department of Transportation 

Lebanon, Ohio 45036 1980 West Broad Street 

 Columbus, Ohio 43223 

8/3 

Filed 8/11/11 

Sent to S.C. reporter 1/3/12