[Cite as Murphy v. Ohio Dept. of Transp., 2011-Ohio-7051.]

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

ELINOR MURPHY 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-09110 

Judge Alan C. Travis 

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

{¶1} On October 17, 2011, defendant, Ohio Department of Transportation 

(ODOT), filed a motion for summary judgment pursuant to Civ.R. 56(B). Plaintiff has not 

filed a response. The motion is now before the court for a non-oral hearing. 

{¶2} Civ.R. 56(C) states, in part, as follows: 

{¶3} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, that reasonable 

minds can come to but one conclusion and that conclusion is adverse to the party 

against whom the motion for summary judgment is made, that party being entitled to 

have the evidence or stipulation construed most strongly in the party’s favor.” See also 
Case No. 2011-09110 - 2 - ENTRY

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc. (1977), 50 Ohio St.2d 317. 

{¶4} In her complaint, plaintiff alleges that on June 16, 2011, her vehicle was 

damaged when it struck a pothole on Interstate 71 (I-71) near mile marker 10.6. Plaintiff 

claims that ODOT was negligent in its maintenance of I-71 and that ODOT’s negligence 

proximately caused the damage to her vehicle. 

{¶5} Defendant has the duty to maintain its highways in a reasonably safe 

condition for the motoring public. Knickel v. Dept. of Transp. (1976), 49 Ohio App.2d 

335. However, defendant is not an insurer of the safety of its highways. See Kniskern 

v. Twp. of Somerford (1996), 112 Ohio App.3d 189; Rhodus v. Ohio Dept. of Transp. 

(1990), 67 Ohio App.3d 723. “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.” Carson v. Ohio Dept. of 

Transp., Ct. of Cl. No. 2010-01581-AD, 2010-Ohio-4584, ¶9, citing Denis v. Dept. of 

Transp. (Feb. 27, 1976), Ct. of Cl. No. 1975-0287-AD. 

{¶6} Inasmuch as plaintiff has failed to respond to defendant’s motion, there is no 

evidence that defendant had actual notice of the pothole in question prior to the June 

16, 2011 incident. Furthermore, in support of the motion for summary judgment, 

defendant submitted the affidavit of William Davis, defendant’s “District Eight Roadway 

Services Engineer.” Therein, Davis avers: 

{¶7} “3. ODOT District Eight maintenance personnel were continually 

monitoring and conducting normal routine maintenance to the area of Interstate Route 

71 identified by the Plaintiff; 
Case No. 2011-09110 - 3 - ENTRY

{¶8} “4. ODOT’s maintenance activity records indicate that there was a pothole 

patching operation on Interstate Route 71 South at mile marker 10.6 on June 16, 2011. 

This repair was performed by ODOT’s night crew in the early morning hours of June 16, 

2011, at least twelve (12) hours prior to the claimed incident (7:30 pm per Plaintiff); 

{¶9} “5. Any problems in this area would have been fixed by this repair, and 

ODOT’s maintenance activity records indicate that no further repairs were required at 

this location in the 30 days after the June 16 incident. 

{¶10} “6. ODOT complaint records from December 16, 2010, to June 16, 2011, 

do not contain any complaints of potholes in the area of the alleged incident on 

Interstate Route 71 South.” 

{¶11} The only permissible inference to draw from Davis’ uncontested affidavit is 

that ODOT did not have constructive notice of the pothole in question and that ODOT’s 

general maintenance practices with respect to the roadway were reasonable, under the 

circumstances. See Herlihy v. Dept. of Transp. (July 19, 1999), Ct. of Cl. No. 1999-

07011-AD. 

{¶12} “The moving party bears the initial responsibility of informing the trial court 

of the basis for the motion, and identifying those portions of the record that demonstrate 

the absence of a genuine issue of fact on a material element of one or more of the 

nonmoving party’s claims for relief. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. If 

the moving party satisfies this initial burden by presenting or identifying appropriate 

Civ.R. 56(C) evidence, the nonmoving party must then present similarly appropriate 

evidence to rebut the motion with a showing that a genuine issue of material fact must 

be preserved for trial. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2. The 

nonmoving party does not need to try the case at this juncture, but its burden is to 

produce more than a scintilla of evidence in support of its claims. McBroom v. 

Columbia Gas of Ohio, Inc. (June 28, 2001), Franklin App. No. 00AP-1110.” Nu-Trend 
Case No. 2011-09110 - 4 - ENTRY

Homes, Inc. v. Law Offices of DeLibera, Lyons & Bibbo, Franklin App. No. 01AP-1137, 

2003-Ohio-1633, ¶17. 

{¶13} Plaintiff has not responded to defendant’s motion with any evidence to 

rebut defendant’s motion or otherwise establish the existence of a genuine issue of 

material fact. 

{¶14} Accordingly, defendant’s motion for summary judgment is GRANTED and 

judgment is rendered in favor of defendant. Court costs are assessed against plaintiff. 

The clerk shall serve upon all parties notice of this judgment and its date of entry upon 

the journal. 

 _____________________________________ 

 ALAN C. TRAVIS 

 Judge 

cc: 

 

Kristin S. Boggs 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Elinor Murphy 

6565 Crest Circle 

Middletown, Ohio 45042 

AMR/dms

Filed December 28, 2011 

To S.C. reporter March 20, 2012