[Cite as McNamara v. Ohio Dept. of Transp., 2010-Ohio-6646.]

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

GREGORY A. MCNAMARA 

 Plaintiff 

 v. 

THE OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-06478-AD 

Clerk Miles C. Durfey 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Gregory A. McNamara, filed this action against defendant, 

Department of Transportation (ODOT), contending that his 2008 Volkswagen Jetta was 

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

hazardous condition on Interstate 670 in Franklin County. Specifically, plaintiff related 

that the rim on his car was damaged when the vehicle “hit a pothole near the Grandview 

Avenue exit” on Interstate 670 West. In his complaint, plaintiff recalled that the damage 

incident occurred on February 25, 2010 at approximately 6:30 p.m. Plaintiff requested 

damage recovery in the amount of $314.90, the total cost of a replacement part. The 

$25.00 filing fee was paid and plaintiff seeks reimbursement of that cost along with his 

damage claim. 

{¶ 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 February 25, 2010 described occurrence. Defendant located the particular 

pothole “between mileposts 1.20 and 0.95 on I-670 in Franklin County.” Defendant 

explained that ODOT records show no reports of a pothole at the location indicated 
were recorded prior to plaintiff’s damage event. Defendant related that ODOT received 

four complaints of potholes on Interstate 670 (two on February 18, 2010, February 22, 

2010, and February 23, 2010) “but none of them were in the same location as 

plaintiff’s.” Defendant noted that the particular section of roadway, “has an average 

daily traffic count between 68,240 to 86,350 vehicles,” yet no prior complaints were 

received regarding a pothole between milepost 1.20 to 0.95 on Interstate 670. 

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.” Defendant 

asserted that plaintiff failed to offer any evidence to prove his property damage was 

attributable to ODOT personnel. Defendant contended that plaintiff failed to prove his 

property damage was proximately caused by negligent maintenance on the part of 

ODOT. Defendant explained 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 between milepost 

1.20 and 0.95 on Interstate 670 the last time that section of roadway was inspected 

before February 25, 2010. Defendant’s maintenance records show “that no (0) pothole 

patching operations were conducted in the general vicinity of plaintiff’s incident” during 

the six-month period prior to February 25, 2010. The maintenance records (copy 

submitted) indicates that ODOT crews patched potholes between mileposts 7.80 to 4.00 

on January 20, 2010. Defendant contended that plaintiff failed to produce evidence to 

establish the length of time the particular pothole existed prior to 6:30 p.m. on February 

25, 2010. Defendant stated that, “if ODOT personnel had detected any defects they 

would have been promptly scheduled for repair.” 

{¶ 3} To prevail on a claim of negligence, plaintiff must prove, by a 

preponderance of the evidence, that defendant owed him a duty, that it breached that 

duty, and that the breach proximately caused his 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. 

{¶ 4} 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. 

{¶ 5} 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 on Interstate 670 prior to February 25, 2010. 

{¶ 6} 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. 

{¶ 7} 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. No evidence has shown that ODOT had constructive notice of the pothole. 
{¶ 8} 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. The fact that defendant’s “Maintenance History” reflects no 

pothole repairs were made in the vicinity of plaintiff’s incident during the preceding six 

months does not prove negligent maintenance of the roadway on the part of ODOT. 

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 pothole. 

{¶ 9} In the instant claim, plaintiff has failed to introduce evidence sufficient to 

prove that defendant maintain a known hazardous roadway condition. Plaintiff failed to 

prove that his property damage was connected to any conduct under the control of 

defendant, 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 
GREGORY A. MCNAMARA 

 Plaintiff 

 v. 

THE OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-06478-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: 

Gregory A. McNamara Jolene M. Molitoris, Director 

3386 Timber Oak Drive Department of Transportation 

Columbus, Ohio 43204 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

9/15 

Filed 10/15/10 

Sent to S.C. reporter 2/2/11