[Cite as Haas v. Ohio Dept. of Transp., 2011-Ohio-6904.]

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

HERB HAAS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant

Case No. 2011-05840-AD 

Acting Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, Herb Haas, filed this action against defendant, Department of 

Transportation (ODOT), contending his 2002 BMW was damaged as a proximate result 

of negligence on the part of ODOT in maintaining a hazardous condition on Interstate 

75 South in Hamilton County. Specifically, plaintiff related he hit a pothole in the fast 

lane “or next to fast lane” and that the left front tire and rim had to be replaced. Plaintiff 

recalled that the car eventually needed extensive repairs to include “the splash guards, 

springs, shocks and struts.” Plaintiff filed this complaint requesting reimbursement for 

the repair costs resulting from the described incident. Plaintiff did not specify the 

amount of his damages related to the pothole incident; however he did indicate that he 

is liable for a $1000.00 insurance deductible and that he is awaiting reimbursement from 

his insurer. Plaintiff recalled that his property-damage event occurred on March 11, 

2011 at approximately 2:00 p.m. 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 described occurrence. According to defendant, plaintiff struck the pothole on 

February 9, 2011. Defendant located the pothole “between milepost 3.7 and 4.0 on I-75 
in Hamilton County” and defendant advised that “ODOT did not receive any reports of 

the pothole or have knowledge of the pothole prior to the incident.” 

{¶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.” Defendant asserted that 

general maintenance and inspection is conducted to ensure a properly maintained 

roadway. 

{¶4} Plaintiff filed a response. Plaintiff pointed out pothole repairs by ODOT 

occurred on or after February 9, 2011, on I-75 southbound. In addition, plaintiff 

referenced e-mail communications sent to ODOT from Seth Pawlak on January 19 and 

27, 2011, regarding potholes on I-75 southbound. The area initially described by 

Pawlak corresponds to milepost 14.26 on I-75 southbound. See Claim Nos. 2011-

02565-AD and 2011-03987-AD. 

{¶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, 47 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 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 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. Despite the arguments presented in his July 11, 

2011 response, plaintiff has failed to prove that defendant had constructive notice of the 

particular pothole that caused damage to his vehicle prior to February 9, 2011. 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 

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 

HERB HAAS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant

Case No. 2011-05840-AD 

Acting 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 

 Acting Clerk 

Entry cc: 

Herb Haas Jerry Wray, Director 

114 E. 8th Department of Transportation 

Cincinnati, Ohio 45202 1980 West Broad Street 

 Columbus, Ohio 43223 

7/21 

Filed 8/10/11 

Sent to S.C. reporter 1/3/12