[Cite as Muddiman v. Ohio Dept. of Transp., Dist. 8, 2011-Ohio-2121.]

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

RICHARD A. MUDDIMAN 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8 

 Defendant 

Case No. 2010-11021-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Richard A. Muddiman, filed this action against defendant, 

Department of Transportation (ODOT), contending his 1999 Dodge Avenger was 

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

hazardous condition of Interstate 75 North in Hamilton County. Specifically, plaintiff 

related the suspension on his Dodge Avenger was substantially damaged when the 

vehicle was “swallowed by a large (unforseen) sink hole” that was located near the 

Sharon Road Exit on Interstate 75. Plaintiff pointed out the described damage-causing 

roadway defect (sink hole) “appeared to have been recently repaired.” With his 

complaint, plaintiff attached photographs depicting the particular roadway defect. The 

trier of fact finds the defect depicted is a large pothole that had been previously patched 

and the patching material had deteriorated forming the defect shown. Plaintiff recalled 

his damage event occurred on July 24, 2010 at approximately 12:00 a.m. Submitted 

documentation from defendant (Maintenance Records) noted ODOT crews last patched 

potholes prior to July 24, 2010 in the vicinity of plaintiff’s incident on May 7, 2010. 

According to the submitted “Maintenance Records,” the last activity ODOT crews 
conducted on Interstate 75 in the vicinity of plaintiff’s incident prior to July 24, 2010, was 

on July 16, 2010 when “Litter Pickup” occurred. Plaintiff argued the damage to his 

vehicle was the result of negligence on the part of ODOT in conducting pothole patching 

operations and he consequently filed this complaint seeking to recover $894.36, the 

cost of automotive repair and related expenses he incurred. 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 July 24, 2010 described occurrence. Defendant located the particular pothole 

“at milepost 15.39 on I-75 in Hamilton County” and advised that “ODOT did not receive 

any reports of the pothole or have knowledge of the pothole prior to the (July 24, 2010) 

incident.” Defendant submitted a copy of “Maintenance Records” recording ODOT 

maintenance activity on Interstate 75 from January 24, 2010 to July 24, 2010. The 

submitted documents show ODOT personnel performed pothole patching operations in 

the vicinity of plaintiff’s incident on March 2, 2010, March 3, 2010, March 4, 2010, April 

14, 2010, April 15, 2010, April 20, 2010, May 5, 2010, and May 7, 2010. Defendant 

denied receiving any prior complaints of a pothole at milepost 15.39 on Interstate 75 

despite the fact this section of roadway has an average daily traffic volume of over 

14,000 vehicles. 

{¶ 3} Defendant denied ODOT negligently maintained Interstate 75 in Hamilton 

County. Defendant noted the ODOT “Hamilton County Manager inspects all state 

roadways within the county at least two times a month.” Apparently no potholes were 

discovered at milepost 15.39 on Interstate 75 North the last time that section of roadway 

was inspected prior to July 24, 2010. The claim file is devoid of any copy of ODOT 

Hamilton County inspection records. Defendant asserted the particular location of 

Interstate 75 is a well patrolled location and suggested the pothole plaintiff’s vehicle 

struck “existed for only a short time before the incident.” 

{¶ 4} Plaintiff filed a response advising his property damage was caused by “a 

terrible patch job” of a roadway defect on the part of ODOT. Plaintiff asserted 

defendant was negligent in “not fixing the road correctly.” Additionally, plaintiff 

contended that ODOT should have inspected the subject roadway on a more frequent 

basis considering the high daily traffic volume creating conditions of surface pavement 

deterioration. Plaintiff suggested defendant should have known of the pothole at 
milepost 15.69 considering the large size of that particular defect. 

{¶ 5} For plaintiff to prevail on a claim of negligence, he 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. Plaintiff 

has the burden of proving, by a preponderance of the evidence, that he 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. 

{¶ 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), 

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 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. 

{¶ 8} “[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; Gelarden v. Ohio Dept. of Transp., Dist. 4, 

Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047. 

{¶ 9} 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 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. 

{¶ 10} Plaintiff may establish liability on the part of defendant by providing 

evidence of negligent maintenance. Weitzman v. Ohio Dept. of Transp., Ct. of Cl. No. 

2008-07942-AD, jud. aff. (4-8-09), 2008-Ohio-7129. There is evidence in the present 

claim that the pothole plaintiff’s car struck may have been previously patched on May 7, 

2010 and the patch had deteriorated. However, evidence proving plaintiff’s car struck a 

deteriorated repair does not provide conclusive proof of negligent maintenance. A 

pothole patch that deteriorates in less than ten days is prima facie evidence of negligent 

maintenance. See Matala v. Ohio Department of Transportation, Ct. of Cl. No. 2003-

01270-AD, 2003-Ohio-2618. However, a pothole patch which may or may not have 

deteriorated over a longer time frame does not constitute, in and of itself, conclusive 

evidence of negligent maintenance. See Edwards v. Ohio Department of 

Transportation, District 8, Ct. of Cl. No. 2006-01343-AD, jud, 2006-Ohio-7173. Plaintiff 

has failed to prove that the pothole that damaged his car had been previously patched 

after May 7, 2010 or was patched with material subject to rapid deterioration since the 
last previous pothole repair made by ODOT in the vicinity of his incident was May 7, 

2010. Furthermore, plaintiff also failed to establish the general time frame when the 

roadway condition encountered appeared. Plaintiff, in the instant claim, 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 condition. Herlihy v. 

Ohio Department of Transportation (1999), 99-07011-AD. 

 

 

 

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 

RICHARD A. MUDDIMAN 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8 

 Defendant 

Case No. 2010-11021-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: 

Richard A. Muddiman Jerry Wray, Director 

6349 Mullen Road Department of Transportation 

Cincinnati, Ohio 45247 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

1/25 

Filed 2/16/11 

Sent to S.C. reporter 4/29/11