[Cite as Mackey v. Dept. of Transp., 2011-Ohio-7023.]

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

LINDA MACKEY 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant

Case No. 2011-09446-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Linda Mackey, filed this action against defendant, Department of 

Transportation (ODOT), contending her car was damaged as a proximate result of 

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

State Route 151 in Jefferson County. In her complaint, plaintiff stated that she hit two 

potholes approximately fifteen feet apart and the impacts destroyed her tire. Plaintiff 

recalled the particular damage incident occurred on March 23, 2011, at approximately 

1:00 p.m. Plaintiff requested damages in the amount of $417.30, the total cost of a 

replacement tire and rim. The $25.00 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 March 23, 2011 described occurrence. Defendant located the pothole “near 

milepost 15.99 on SR 151 in Jefferson County.” Defendant explained ODOT “did not 

receive any reports of the pothole or have knowledge of the pothole prior to the 

incident.” Defendant argued plaintiff did not provide any evidence to establish the 
length of time the particular pothole was present on the roadway prior to March 23, 

2011. Defendant suggested, “it is likely the pothole existed for only a short time before 

the incident.” 

{¶ 3} Furthermore, defendant contended plaintiff did not offer any evidence to 

prove the roadway was negligently maintained. Defendant related the ODOT “Jefferson 

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 on 

SR 151 the last time that section of roadway was inspected prior to March 23, 2011. 

Defendant’s maintenance records show potholes were patched in the northbound lanes 

of SR 151 on March 21, 2011. 

{¶ 4} Plaintiff filed a response detailing the efforts she made to report the 

potholes after her car was damaged. 

{¶ 5} 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. 

{¶ 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 defendant had actual notice of the pothole 

on SR 151 prior to the afternoon of March 23, 2011. 

{¶ 8} Therefore, to find liability plaintiff must prove 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 the 

defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio 

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

{¶ 9} 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. “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. There is insufficient evidence to show 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. 

{¶ 11} Plaintiff has not produced sufficient evidence to infer 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 introduce sufficient evidence to prove defendant maintained a 
known hazardous roadway condition. Plaintiff has failed to prove that her property 

damage was connected to any conduct under the control of defendant, defendant was 

negligent in maintaining the roadway area, or that there was any 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. 

 
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 

LINDA MACKEY 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant

Case No. 2011-09446-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: 

Linda Mackey Jerry Wray, Director 

866 Efts Lane Department of Transportation 

Wintersville, Ohio 43953 1980 West Broad Street 

 Columbus, Ohio 43223 

10/12 

Filed 10/18/11 

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