[Cite as Knight v. Ohio Dept. of Transp., 2010-Ohio-6546.]

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

LISA KNIGHT 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-03690-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Lisa Knight, filed this action against defendant, Department of 

Transportation (ODOT), contending her automobile was damaged as a proximate cause 

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

75 South in Hamilton County. Specifically, plaintiff advised that the wheel, strut, and 

stabilizer links on her vehicle were damaged as a result of striking a pothole in the left 

lane of Interstate 75. Plaintiff filed this complaint requesting damage recovery in the 

amount of $467.40, the total cost of replacement parts needed resulting from the 

described incident. Plaintiff recalled that her property damage event occurred on 

February 17, 2010 at approximately 11:30 a.m. The filing fee was paid. 

{¶ 2} Defendant denied liability in this matter based on the contention that no 

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

plaintiff’s February 17, 2010 described occurrence. Defendant located the particular 

pothole “between milepost 10.88 and 9.45 on I-75 in Hamilton County” and advised that 

“ODOT did not receive any reports of the pothole or have knowledge of the pothole prior 

to the (February 17, 2010) incident.” According to ODOT records the only complaint 
received (December 14, 2009) regarding a pothole on Interstate 75 was in the 

northbound lane; the opposite direction of where plaintiff was traveling when her vehicle 

struck a pothole. Defendant submitted a copy of “Maintenance Records” recording 

ODOT maintenance activity on Interstate 75 from August 17, 2009 to February 17, 

2010. The submitted document shows ODOT personnel performed pothole patching 

operations in the vicinity of plaintiff’s incident on September 9, 2009, January 12, 2010, 

and January 13, 2010. The pothole repair that was apparently made in response to the 

October 12, 2009 complaint is not listed on the submitted maintenance activity 

document. 

{¶ 3} Defendant denied ODOT negligently maintained Interstate 75 in Hamilton 

County. Defendant noted the ODOT “Hamilton County Manager inspects all state 

roadways within the county at least two times a month.” Apparently no potholes were 

discovered between mileposts 10.88 and 9.45 on Interstate 75 South the last time that 

section of roadway was inspected prior to February 17, 2010. The claim file is devoid of 

any copy of ODOT Hamilton County inspection records. Defendant asserted the 

particular location of Interstate 75 is a well patrolled location and suggested the pothole 

plaintiff’s car struck “existed for only a short time before the incident.” 

{¶ 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. Plaintiff 

has the burden of proving, by a preponderance of the evidence, that she 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. 

{¶ 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 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. 

{¶ 7} “[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 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. 

{¶ 8} 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 length of 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. 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 that plaintiff 

may have suffered from the roadway defect. 

 

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 

LISA KNIGHT 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-03690-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: 

Lisa Knight Jolene M. Molitoris, Director 

5713 Rutledge Trl. Department of Transportation 

Liberty Twp., Ohio 45011 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

8/6 

Filed 9/15/10 

Sent to S.C. reporter 12/29/10