[Cite as Punsalan v. Ohio Dept. of Transp., 2011-Ohio-3970.]

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

LEGASPI M. PUNSALAN, et al. 

 Plaintiffs 

 v. 

THE OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-01640-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiffs, Legaspi and Marcia Punsalan, filed this action against defendant, 

Department of Transportation (ODOT), asserting that their 2006 Toyota Camry was 

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

hazardous roadway condition on Interstate 475 in Toledo, Ohio. Plaintiffs related that 

they were traveling east on Interstate 475 through a construction zone on December 13, 

2010, at approximately 8:00 p.m. when their vehicle struck either a chunk of concrete or 

a pothole in the “far left lane, about 25 feet from the ramp onto I-75 north.” Plaintiffs 

pointed out that the left front tire and rim were severely damaged as a result of the 

impact. Plaintiffs requested damages in the amount of $275.81, the stated cost of 

replacement parts and related repair expenses they incurred resulting from the 

described incident. The filing fee was paid. 

{¶ 2} Defendant explained that the roadway area where plaintiffs’ damage event 

occurred was within the limits of a working construction project under the control of 

ODOT contractor E.S. Wagner Company (Wagner). Defendant related that the 

particular construction project dealt with improvements to a section of roadway “by 
grading, draining and paving with stone matrix asphalt concrete on an asphalt concrete 

base.” According to defendant, the construction project limits “are county mileposts 

14.18 to 16.20 on I-475 in Lucas County” and plaintiffs’ damage incident occurred at 

milepost 16.11, a location within the construction area limits. Defendant asserted that 

this particular construction project was under the control of Wagner and consequently 

ODOT had no responsibility for any damage or mishap on the roadway within the 

construction project limits. Defendant argued that Wagner, by contractual agreement, 

was responsible for maintaining the roadway within the construction zone. Therefore, 

ODOT contended that Wagner is the proper party defendant in this action. Defendant 

implied that all duties, such as the duty to inspect, the duty to warn, the duty to maintain, 

and the duty to repair defects were delegated when an independent contractor takes 

control over a particular section of roadway. Furthermore, defendant contended that 

plaintiffs failed to introduce sufficient evidence to prove their damage was proximately 

caused by roadway conditions created by ODOT or its contractors. All construction 

work was to be performed in accordance with ODOT requirements and specifications 

and subject to ODOT approval. Also, evidence has been submitted to establish that 

ODOT personnel were present onsite conducting inspection activities. 

{¶ 3} Plaintiffs filed a response wherein they claimed that they now believe the 

accident occurred at mile marker 20.0 on I-475, that this area was within the 

construction zone, and that defendant should have anticipated that the defect in the 

roadway was inevitable in light of the ongoing construction and heavy traffic volume 

through the area. 

{¶ 4} For plaintiffs to prevail on a claim of negligence, they must prove, by a 

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

duty, and that the breach proximately caused their 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. Plaintiffs 

have the burden of proving, by a preponderance of the evidence, that they 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 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. The duty of ODOT to maintain the roadway in a 

safe drivable condition is not delegable to an independent contractor involved in 

roadway construction. ODOT may bear liability for the negligent acts of an independent 

contractor charged with roadway construction. Cowell v. Ohio Department of 

Transportation, Ct. of Cl. No. 2003-09343-AD, jud, 2004-Ohio-151. Despite 

defendant’s contentions that ODOT did not owe any duty in regard to the construction 

project, defendant was charged with duties to inspect the construction site and correct 

any known deficiencies in connection with the particular construction work. See 

Roadway Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP1119. 

{¶ 6} Alternatively, defendant denied that either ODOT or Wagner had any notice 

of the particular pothole or of defective concrete prior to plaintiffs’ property damage 

event. Defendant pointed out that ODOT records “indicate that no calls or complaints 

were received regarding a pothole prior to Plaintiff Punsalan’s incident.” Defendant 

contended plaintiffs failed to offer any evidence of negligent roadway maintenance on 

the part of ODOT and failed to produce evidence to establish their property damage 

was attributable to conduct on either the part of ODOT or Wagner. 

{¶ 7} Defendant submitted a letter from Wagner’s General Counsel, Kent Huber, 

who recorded, “the pothole and debris originated in the evening on December 13, 2010 

from pavement that was located on eastbound IR-475 near Upton Ave. First, E.S. 

Wagner Company was not negligent in failing to identify a latent defect in the pavement 

which did not manifest itself until E.S. Wagner personnel had completed their operations 
for the day and were no longer on the project site. * * * E.S. Wagner Company is not 

responsible for the property damage incurred by the claimants on December 13, 2010.” 

{¶ 8} In order to find liability for a damage claim occurring in a construction area, 

the court must look at the totality of the circumstances to determine whether ODOT 

acted in a manner to render the highway free from an unreasonable risk of harm for the 

traveling public. Feichtner v. Ohio Dept. of Transp. (1995), 114 Ohio App. 3d 346, 683 

N.E. 2d 112. In fact, the duty to render the highway free from an unreasonable risk of 

harm is the precise duty owed by ODOT to the traveling public under both normal traffic 

and during highway construction projects. See e.g. White v. Ohio Dept. of Transp.

(1990), 56 Ohio St. 3d 39, 42, 564 N.E. 2d 462. 

{¶ 9} In order to prove a breach of the duty to maintain the highways, plaintiffs 

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. 

{¶ 10} Generally, in order to recover in a suit involving damage proximately 

caused by roadway conditions including potholes, plaintiffs 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. There is no evidence that defendant had actual notice of the 

pothole or the concrete debris condition. Therefore, in order to recover plaintiffs must 

produce evidence to prove constructive notice of the defect or negligent maintenance. 

{¶ 11} “[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. 

{¶ 12} 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. 

{¶ 13} In order for there to be constructive notice, plaintiffs 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 or concrete debris. 

{¶ 14} Plaintiffs have 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. 

Plaintiffs have failed to prove that their damage was proximately caused by any 

negligent act or omission on the part of ODOT or its agents. See Wachs v. Dept. of 

Transp., Dist. 12, Ct. of Cl. No. 2005-09481-AD, 2006-Ohio-7162; Nicastro v. Ohio 

Dept. of Transp., Ct. of Cl. No. 2007-09323-AD, 2008-Ohio-4190.
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 

LEGASPI M. PUNSALAN, et al. 

 Plaintiffs 

 v. 

THE OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-01640-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 plaintiffs. 

 

 ________________________________ 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Legaspi M. Punsalan Jerry Wray, Director 

Marcia W. Punsalan Department of Transportation 

625 S. Berlin Avenue 1980 West Broad Street 

Oregon, Ohio 43616 Columbus, Ohio 43223 

SJM/laa 

4/7 

Filed 4/27/11 

Sent to S.C. reporter 8/10/11