[Cite as Kaufman v. Ohio Dept. of Transp., 2015-Ohio-5351.]

DONALD KAUFMAN 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF 

TRANSPORTATION 

 Defendant 

Case No. 2015-00080-AD 

Clerk Mark H. Reed 

MEMORANDUM DECISION 

{¶1} Plaintiff Donald Kaufman filed this claim on January 30, 2015 to recover 

damages which occurred when his 2011 BMW struck a large chunk of concrete on the 

road on January 15, 2015, while traveling on St. Rt. 161 in Union County, Ohio. This 

road is a public road maintained by the Ohio Department of Transportation. Plaintiff’s 

vehicle sustained damages in the amount of $1,117.24. Plaintiff maintains a collision 

insurance deductible of $500.00. 

{¶2} In order to recover on a claim for roadway damages against the Ohio 

Department of Transportation, Ohio law requires that a motorist/plaintiff prove all of the 

following: 

{¶3} That the plaintiff’s motor vehicle received damages as a result of coming 

into contact with a dangerous condition on a road maintained by the defendant. 

{¶4} That the defendant knew or should have known about the dangerous road 

condition. 

{¶5} That the defendant, armed with this knowledge, failed to repair or remedy 

the dangerous condition in a reasonable time. 

{¶6} In this claim, the Court finds that the plaintiff did prove that his vehicle 

received damages and that those damages occurred as a result of the plaintiff’s vehicle 

coming into contact with a dangerous condition on a road maintained by the defendant. 
Case No. 2015-00080-AD -2- MEMORANDUM DECISION 

{¶7} The next element that a plaintiff must prove to succeed on a claim such as 

this is to show that the defendant knew or should have known about this dangerous 

condition. Based on the evidence presented, the Court is unable to find that the 

defendant had actual knowledge of the dangerous condition. Likewise, the Court is 

unable to find that the defendant should have known about this dangerous condition 

and thus would have had constructive notice about the highway danger. Constructive 

notice is defined as “(n)otice arising from the presumption of law from the existence of 

facts and circumstances that a party has a duty to take notice of...Notice presumed by 

law to have been acquired by a person and thus imputed to that person.” (Black’s Law 

Dictionary at 1090 8th Ed. 2004.) 

{¶8} In order for there to be constructive notice, a plaintiff must prove that 

sufficient time has passed after the dangerous condition first appears, so that under the 

circumstances the defendant should have gained knowledge of its existence. This, the 

plaintiff has been unable to do. 

{¶9} In the Investigation Report filed April 13, 2015 the defendant stated that the 

location of the incident was on SR 161 in Union County, at mile marker 2.65. This 

section of the roadway has an average daily traffic count of between 1,520 and 2,180 

vehicles. Despite this volume of traffic, the department had received no notice of road 

debris or loose concrete on this road thus, the Court is unable to find that the 

department knew about the loose concrete. Within the past six months, the department 

had also conducted forty (40) maintenance operations on SR 161 in Union County 

without discovering any loose debris or concrete on the roadway. A review of the 

inspections performed by ODOT and submitted to the Court does not show a report of 

any loose debris. If any piece of concrete were loose for any appreciable length of time, 

it is probable that it would likely have been discovered by the department’s work crews. 
Case No. 2015-00080-AD -3- MEMORANDUM DECISION 

Thus, the Court cannot find that the department should have known about this loose 

concrete. 

{¶10} Under Ohio law, the burden of proof in civil claims like this one rests on the 

plaintiff. Admittedly, this places a difficult task on a plaintiff in a loose debris claim 

against ODOT. However, this is the law that is binding on this Court at the present time. 

{¶11} Finally, the law in Ohio is that the department is not an absolute insurer of 

a motorist’s safety on the highway. The department is only liable for damage when the 

Court finds that it was negligent. This the Court is unable to do. 

{¶12} Since the plaintiff is unable to prove that the defendant knew or should 

have known about this dangerous condition, the claim must fail. 

 

DONALD KAUFMAN 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF 

TRANSPORTATION 

 Defendant 

Case No. 2015-00080-AD 

Clerk Mark H. Reed 

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 shall be absorbed by the court.

 

 MARK H. REED 
Case No. 2015-00080-AD -4- MEMORANDUM DECISION 

 Clerk 

Entry cc: 

Donald Kaufman 

3630 Dayspring Drive 

Hilliard, Ohio 43026 

Jerry Wray, Director 

Ohio Department Of Transportation 

1980 West Broad Street 

Mail Stop 1500 

Columbus, Ohio 43223 

Filed 9/22/15 

Sent to S.C. Reporter 12/21/15