[Cite as Wolf v. Dept. of Transp., 2010-Ohio-4793.]

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

BILLIE K. WOLF 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-03266-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} On February 14, 2010, at approximately 8:30 p.m., plaintiff, Billie K. Wolf, 

was traveling west on State Route 125 within the Village of Amelia in Clermont County, 

when her 2009 Ford Flex struck “a very large pothole” causing tire damages to the 

vehicle. Plaintiff pointed out that after the damage incident she reported the pothole to 

Village of Amelia employees who were supposedly aware of the defect due to prior 

complaints. Plaintiff asserted the damage to her vehicle was proximately caused by 

negligence on the part of defendant, Department of Transportation (ODOT), in failing to 

maintain the roadway free of defects such as potholes. Plaintiff filed this complaint 

seeking to recover $369.85, the total cost of a replacement tire. The filing fee was paid. 

{¶ 2} Defendant denied liability based on the contention that no ODOT 

personnel had any knowledge of the particular pothole on the roadway prior to plaintiff’s 

property damage occurrence. Defendant advised plaintiff was contacted to provide a 

more specific location of the pothole on State Route 125 and from her description 

ODOT located the defect at approximately milepost 6.77. Defendant denied receiving 

any calls or complaints regarding a pothole at milepost 6.77 on State Route 125 prior to 
plaintiff’s February 14, 2010 property damage event. Defendant suggested “it is likely 

the pothole existed for only a short time before the incident.” Furthermore, defendant 

asserted plaintiff did not produce any evidence to prove her property damage was 

caused by negligent maintenance. Defendant explained the ODOT “Clermont County 

Manager inspects all state roadways within the county at least two times a month.” 

Apparently no potholes were discovered at milepost 6.77 on State Route 125 the last 

time that section of roadway was inspected prior to February 14, 2010. 

{¶ 3} Plaintiff filed a response pointing out she contacted “Julie Wartman in the 

Village of Amelia” regarding her property damage from the pothole on State Route 125. 

Plaintiff noted she was told by Julie Wartman that the village had received several 

phone complaints about potholes on State Route 125 prior to February 14, 2010. 

Plaintiff further noted that Julie Wartman informed her that she notified ODOT “several 

times regarding” potholes on State Route 125 within the Village of Amelia. Plaintiff did 

not provide any statement from Julie Wartman in reference to the matter asserted in 

connection with a prior report of the particular pothole at milepost 6.77. 

{¶ 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 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. 

{¶ 6} 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 present. 

{¶ 7} “[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 . 

{¶ 8} 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. 

{¶ 9} Ordinarily in a claim involving roadway defects, plaintiff must prove either: 

1) defendant had actual or constructive notice of the defective condition 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 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. 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 

BILLIE K. WOLF 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-03266-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: 

Billie K. Wolf Jolene M. Molitoris, Director 

1325 Statewood Court Department of Transportation 

Amelia, Ohio 45102 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

5/20 

Filed 6/8/10 

Sent to S.C. reporter 10/1/10