[Cite as Houk v. Ohio Dept. of Transp., 2011-Ohio-6980.]

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

GAYLE HOUK 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-08288-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, Gayle Houk, filed this action against defendant, Department of 

Transportation (ODOT), contending she suffered property damage as a proximate result 

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

71 northbound near the North Ridge Road exit. Plaintiff related she was exiting off 

Interstate 71 when she “hit a pothole which blew my tire.” Plaintiff recalled the 

described incident occurred on April 8, 2011, at approximately 3:00 p.m. Plaintiff 

requested damage recovery in the amount of $337.74, the stated total cost of a 

replacement tire. The filing fee was paid. 

{¶2} Defendant determined plaintiff’s incident occurred “between mileposts 

7.92 and 8.49 on I-71 in Hamilton County.” Defendant denied liability based on the 

contention that no ODOT personnel had any knowledge of the particular damagecausing pothole prior to plaintiff’s April 8, 2011 incident. Defendant related that “[t]his 

section of roadway has an average daily traffic count” of over 120,000 vehicles. 

Defendant asserted plaintiff did not offer any evidence to establish the length of time 

that any pothole existed between mileposts 7.92 and 8.49 on I-71 prior to her incident. 

{¶3} Additionally, defendant contended that plaintiff did not offer any evidence 

to prove that the roadway was negligently maintained. Defendant advised that the 
ODOT “Hamilton 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 in the vicinity of plaintiff’s incident the last time that section of 

roadway was inspected prior to April 8, 2011. Defendant argued that plaintiff has failed 

to offer any evidence to prove her property damage was attributable to any conduct on 

the part of ODOT personnel. Defendant asserted that the roadway was “in relatively 

good condition at the time of plaintiff’s incident.” Defendant stated that, “[a] review of 

the six-month maintenance history [record submitted] for the area in question reveals 

that four (4) pothole patching operations were performed on I-71 between mileposts 

7.92 and 8.49.” Defendant noted, “that if ODOT personnel had detected any potholes 

they would have been reported and promptly scheduled for repair.” 

{¶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. This court, as trier of 

fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14 

Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477. 

{¶5} Defendant had 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} Defendant denied receiving any complaints before April 8, 2011, regarding 

a pothole on Interstate 71 between mileposts 7.92 and 8.49. Plaintiff did not file a 

response. 

{¶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. 

{¶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. Plaintiff has not submitted any evidence to establish ODOT had 

actual notice of the pothole condition prior to plaintiff’s incident. Therefore, in order to 

recover plaintiff must produce evidence to prove constructive notice of the defect or 

negligent maintenance. 

{¶9} “[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. The trier of fact is precluded from making an inference of defendant’s 

constructive notice, unless evidence is presented in respect to the time the defective 

condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 

262, 577 N.E. 2d 458. 

{¶10} In order for there to be constructive notice, plaintiff must show 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. “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. No evidence has shown ODOT 

had constructive notice of the pothole. 

{¶11} 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 plaintiff may have suffered from the 

pothole. 

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

prove that defendant maintained known hazardous roadway conditions. Plaintiff failed 

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

defendant, or 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 

GAYLE HOUK 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-08288-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: 

Gayle Houk Jerry Wray, Director 

7 Belsaw Place Department of Transportation 

Cincinnati, Ohio 45220 1980 West Broad Street 

 Columbus, Ohio 43223 

9/23 

Filed 9/29/11 

Sent to S.C. reporter 2/6/12