[Cite as Glascoe v. Ohio Dept. of Transp., 2010-Ohio-6624.]

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

CAROLYN F. GLASCOE 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-06311-AD 

Clerk Miles C. Durfey 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Carolyn F. Glascoe, filed this action against defendant, 

Department of Transportation (ODOT), contending that she suffered property damage 

as a proximate cause of negligence on the part of ODOT personnel in maintaining a 

hazardous condition on US Route 35 in Montgomery County. Plaintiff recalled that she 

was traveling east on US Route 35 on April 3, 2010 at approximately 2:00 p.m. when 

her 2004 Ford Focus struck a pothole causing tire and rim damage to the vehicle. In 

her complaint, plaintiff requested damages in the amount of $274.01, the total cost of 

replacement parts and related repair expenses she incurred resulting from the April 3, 

2010 described incident. 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 April 3, 2010 described occurrence. Defendant located the particular pothole 

“at milemarker 10.32 on US 35 in Montgomery County” and advised that “ODOT did not 

receive any reports of the pothole or have knowledge of the pothole prior to the (April 3, 

2010) incident.” According to ODOT records, no pothole complaints were received in 
the vicinity of plaintiff’s incident. 

{¶ 3} Defendant denied that ODOT negligently maintained US Route 35 in 

Montgomery County. Defendant noted that the ODOT “Montgomery County Manager 

inspects all state roadways within the county at least two times a month.” Apparently no 

potholes were discovered at milepost 10.32 on US Route 35 the last time that section of 

roadway was inspected prior to April 3, 2010. Defendant submitted an inspection 

record showing that US Route 35 in the vicinity of milepost 10.32 was last inspected 

prior to plaintiff’s incident on March 18, 2010. This inspection record bears the notation 

that the roadway in the vicinity of milepost 10.32 needed sealed. Defendant’s 

“Maintenance History” shows that ODOT crews patched potholes in the vicinity of 

milepost 10.32 on January 15, 2010 and patched the particular damage-causing pothole 

on April 5, 2010. Defendant asserted that the particular location of US Route 35 is an 

actively inspected location and suggested that 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 a finding of 

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. 

{¶ 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 

CAROLYN F. GLASCOE 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-06311-AD 

Clerk Miles C. Durfey 

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. 

 

 ________________________________ 

 MILES C. DURFEY 

 Clerk 

Entry cc: 
Carolyn F. Glascoe Jolene M. Molitoris, Director 

221 Voyager Avenue Department of Transportation 

Dayton, Ohio 45417 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

9/29 

Filed 10/12/10 

Sent to S.C. reporter 1/21/11