[Cite as Hister v. Ohio Dept. of Transp., 2011-Ohio-6932.]

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

IVORY M. HISTER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-06722-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, Ivory Hister, filed this action against defendant, Ohio Department 

of Transportation (ODOT), contending that her vehicle was damaged as a proximate 

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

Interstate 76. In her complaint, plaintiff described the particular damage event noting 

that she “hit a pothole on I-76W causing the tire and wheel to have to be replaced on 

the rear driver’s side.” Plaintiff recalled that the damage incident occurred “on or about 

March 10, 2011, at approximately 1625hrs.” Plaintiff seeks recovery of damages in the 

amount of $361.03, the stated total amount for a replacement tire and wheel. The 

$25.00 filing fee was paid. 

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

personnel had any knowledge of the particular damage-causing pothole prior to 

plaintiff’s incident. Defendant related that plaintiff’s incident occurred “near milemarker 

5.0 on I-76 in Medina County.” Defendant denied receiving any prior calls or complaints 

about a pothole or potholes in the vicinity of that location despite the fact that “[t]his 

section of roadway has an average daily traffic count” of over 17,000 vehicles. 
Defendant asserted that plaintiff did not offer any evidence to establish the length of 

time that any pothole existed in the vicinity of milepost 5.0 on I-76 prior to plaintiff’s 

incident. Defendant suggested that “it is more likely than not that the pothole existed in 

that location for only a relatively short amount of time before plaintiff’s 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 “Medina 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 March 10, 2011. The claim file is devoid of any 

inspection record. 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 stated that, “[a] review of the six-month maintenance history 

[record submitted] for the area in question reveals that two (2) pothole patching 

operations were conducted within the incident location.” Defendant noted, that if ODOT 

personnel had detected any defects “they would have been promptly scheduled for 

repair.” 

{¶4} Plaintiff did not file a response. 

{¶5} 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. 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 her 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 conditions or defects 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 on I-76 prior to March 10, 2011 

{¶8} Therefore, to find liability, plaintiff must prove that ODOT had constructive 

notice of the defect. 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 defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio 

Misc. 2d 262, 577 N.E. 2d 458. 

{¶9} In order for there to be constructive notice, plaintiff must show 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 . 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. “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 4. “Obviously, the 

requisite length of time 

{¶10} 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 that ODOT had constructive notice of the pothole. 

{¶11} 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 potholes 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 conditions. 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 

IVORY M. HESTER 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2011-06722-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: 

Ivory M. Hester Jerry Wray, Director 

747 Highland Avenue Department of Transportation 

Mansfield, Ohio 44903 1980 West Broad Street 

 Columbus, Ohio 43223 

SJM/laa 

8/18 

Filed 8/24/11 

Sent to S.C. reporter 1/19/12