[Cite as Church v. Dept. of Transp., 2011-Ohio-6952.]

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

MALLORY CHURCH 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-06676-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, Mallory Church, filed this action against defendant, Ohio 

Department of Transportation (ODOT), contending that her car was damaged as a 

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

condition on Interstate 70 westbound. In her complaint, plaintiff stated that she struck a 

pothole and the impact dented two rims on the right side of her car. Plaintiff recalled 

that the damage incident occurred on March 18, 2011, at approximately 7:30 a.m. 

Plaintiff seeks recovery of damages in the amount of $402.04, the stated cost for two 

replacement rims. The 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 18, 2011 incident. Upon investigation, defendant located plaintiff’s 

incident at state milepost 100.23 on I-70 in Franklin County. Defendant denied 

receiving any prior calls or complaints about a pothole or potholes in the vicinity of that 

location despite the fact that this section of roadway has an average daily traffic count of 

over 92,000 vehicles. Defendant asserted that plaintiff did not offer any evidence to 

establish the length of time that any pothole existed in the vicinity of her incident on I-70 
prior to March 18, 2011. Defendant suggested that “it is more likely than not that the 

pothole existed in that location for only a relatively short amount of time before plaintiff’s 

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 “Franklin 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 March 18, 2011. Defendant argued that plaintiff has 

failed to offer any evidence to prove that her property damage was attributable to any 

conduct on the part of ODOT personnel. Defendant stated that, “[a] review of the sixmonth maintenance history [record submitted] reveals that four (4) pothole patching 

operations were conducted in the general vicinity of plaintiff’s incident.”1

 

{¶4} Plaintiff did not file a response. 

{¶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), 

 1 Upon review of the documents submitted by defendant, it appears that a fifth pothole patching 

operation was conducted on March 16, 2011, in the general vicinity of plaintiff’s damage event. 
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 conditions or defects 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 on I-70 prior to March 18, 2011. 

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

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 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 . 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. Plaintiff has provided insufficient evidence to prove that ODOT 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. 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 conditions. 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. 

{¶11} 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 her 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 

MALLORY CHURCH 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-06676-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: 

Mallory Church Jerry Wray, Director 

8315 Jefferson Road Department of Transportation 

Carroll, Ohio 43112 1980 West Broad Street 

 Columbus, Ohio 43223 

9/14 

Filed 9/21/11 

Sent to S.C. reporter 1/27/12