[Cite as Gaskins v. Dept. of Transp., 2010-Ohio-6552.]

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

SARAH C. GASKINS 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-04904-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Sarah C. Gaskins, filed this action against defendant, Department 

of Transportation (ODOT), contending her 2001 Mitsubishi Eclipse was damaged as a 

proximate cause of negligence on the part of ODOT in maintaining a hazardous 

condition on Interstate 75 in Warren County. Plaintiff related she “was traveling north in 

the middle lane on Interstate 75 in Middletown near mile marker 30” when her vehicle 

struck a pothole causing bumper and rim damage. Plaintiff recalled the described 

incident occurred on February 26, 2010 at approximately 8:00 a.m. Plaintiff requested 

damage recovery in the amount of $1,202.76, the stated total cost of repairs and two 

replacement rims. The filing fee was paid. 

{¶ 2} Defendant acknowledged the roadway area where plaintiff’s incident 

occurred was within the limits of a working construction project under the control of 

ODOT contractor, John R. Jurgensen Company (Jurgensen). Defendant explained the 

particular construction project “dealt with widening I-75 between Cincinnati-Dayton 

Road and SR 122 in Butler and Warren Counties.” According to defendant, the 

construction project limits “corresponds to state mileposts 21.0 to 32.0” on Interstate 75 
and plaintiff’s damage incident occurred at milepost 30.0, a location within the 

construction area limits. Defendant asserted that this particular construction project was 

under the control of Jurgensen and consequently ODOT had no responsibility for any 

damage or mishap on the roadway within the construction project limits. Defendant 

argued that Jurgensen, by contractual agreement, was responsible for maintaining the 

roadway within the construction zone. Therefore, ODOT contended that Jurgensen is 

the proper party defendant in this action. Defendant implied that all duties such as the 

duty to inspect, the duty to warn, the duty to maintain, and the duty to repair defects 

were delegated when an independent contractor takes control over a particular section 

of roadway. Furthermore, defendant contended that plaintiff failed to introduce sufficient 

evidence to prove her damage was proximately caused by roadway conditions created 

by ODOT or its contractors. All construction work was to be performed in accordance 

with ODOT requirements and specifications and subject to ODOT approval. Also 

evidence has been submitted to establish that ODOT personnel were present onsite 

conducting inspection activities. 

{¶ 3} 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. 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. 

{¶ 4} 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. The duty of ODOT to maintain the roadway in a 

safe drivable condition is not delegable to an independent contractor involved in 

roadway construction. ODOT may bear liability for the negligent acts of an independent 

contractor charged with roadway construction. Cowell v. Ohio Department of 

Transportation, Ct. of Cl. No. 2003-09343-AD, jud, 2004-Ohio-151. Despite defendant’s 

contentions that ODOT did not owe any duty in regard to the construction project, 

defendant was charged with duties to inspect the construction site and correct any 

known deficiencies in connection with the particular construction work. See Roadway 

Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119. 

{¶ 5} Alternatively, defendant denied that neither ODOT nor Jurgensen had any 

notice of the particular pothole prior to plaintiff’s property damage event. Defendant 

pointed out that ODOT records “indicate that no calls or complaints were received 

regarding a pothole prior to Plaintiff Gaskins’ incident.” Defendant advised, “[i]t should 

be noted that this portion of I-75 has an average daily traffic volume between 73,320 

and 93,130, however, no other complaints were received (regarding a roadway defect) 

prior to plaintiff’s alleged incident.” Defendant contended plaintiff failed to offer any 

evidence of negligent roadway maintenance on the part of ODOT and failed to produce 

evidence to establish her property damage was attributable to conduct on either the part 

of ODOT or Jurgensen. Defendant denied receiving any complaints before February 

26, 2010 regarding a pothole on Interstate 75 at approximate milepost 30.0. 

{¶ 6} Defendant submitted a letter from Jurgensen Project Manager, Kate 

Holden, who advised Jurgensen personnel patched potholes in the vicinity of milepost 

30.0 on February 26, 2010, the day of plaintiff’s incident. Holden denied Jurgensen had 

any prior knowledge of a pothole at or near milepost 30.0. 

{¶ 7} In order to find liability for a damage claim occurring in a construction 

area, the court must look at the totality of the circumstances to determine whether 

ODOT acted in a manner to render the highway free from an unreasonable risk of harm 

for the traveling public. Feichtner v. Ohio Dept. of Transp. (1995), 114 Ohio App. 3d 

346, 683 N.E. 2d 112. In fact, the duty to render the highway free from an 
unreasonable risk of harm is the precise duty owed by ODOT to the traveling public 

under both normal traffic and during highway construction projects. See e.g. White v. 

Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, 42, 564 N.E. 2d 462. 

{¶ 8} 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. 

{¶ 9} 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. There is no evidence that defendant had actual notice of the 

pothole condition. Therefore, in order to recover plaintiff must produce evidence to 

prove constructive notice of the defect or negligent maintenance. 

{¶ 10} “[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. 

{¶ 11} 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. 

{¶ 12} 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. “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. 

{¶ 13} 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. 

Plaintiff has failed to prove that her damage was proximately caused by any negligent 

act or omission on the part of ODOT or its agents. See Wachs v. Dept. of Transp., Dist. 

12, Ct. of Cl. No. 2005-09481-AD, 2006-Ohio-7162; Nicastro v. Ohio Dept. of Transp., 

Ct. of Cl. No. 2007-09323-AD, 2008-Ohio-4190. 

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 

SARAH C. GASKINS 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-04904-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: 

Sarah C. Gaskin Jolene M. Molitoris, Director 

1373 Corydale Drive Department of Transportation 

Apt. D 1980 West Broad Street 

Fairfield, Ohio 45014 Columbus, Ohio 43223 

 

RDK/laa 

8/10 

Filed 9/20/10 

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