[Cite as Lawrence v. Ohio Dept. of Transp., 2011-Ohio-6883.]

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

JOHN M. LAWRENCE 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant

Case No. 2011-05220-AD 

Acting Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, John Lawrence, filed this action against defendant, Ohio 

Department of Transportation (ODOT), contending that his vehicle was damaged as a 

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

condition on State Route 57. In his complaint, plaintiff described the particular damage 

event noting that he hit “a deep hole in the path of the passenger side of my car.” 

Plaintiff recalled the incident occurred on March 11, 2011, at approximately 6:20 a.m. 

Plaintiff seeks recovery of damages in the amount of $459.27, the stated total amount 

for a replacement tire and wheel. The 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 between 

milemarkers 16.74 and 18.62 on SR 57 in Medina County. Defendant denied receiving 

any prior calls or complaints about a pothole or potholes in the vicinity of that location. 

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

time the pothole existed on SR 57 prior to 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 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 11, 2011. Defendant argued that plaintiff has 

failed to offer any evidence to prove his property damage was attributable to any 

conduct on the part of ODOT personnel. Defendant stated that, “[a] review of the sixmonth maintenance history [record submitted] for the area in question reveals that six 

(6) pothole patching operations were conducted within the incident location.” 

Defendant’s maintenance records show potholes were patched in the vicinity of 

plaintiff’s incident on January 26, 2011, January 31, 2011, February 11, 2011, February 

18, 2011, and March 2, 2011. Plaintiff did not file a response. 

{¶4} 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. 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. 

{¶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 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 SR 57 prior to March 11, 2011. 

{¶7} 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. 

{¶8} 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 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. 92AP1183. No evidence has shown that ODOT had constructive notice of the pothole. 

{¶9} 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. The fact defendant’s “Maintenance History” reflects pothole 

repairs were made in the vicinity of plaintiff’s incident five times in the six weeks 

preceding March 11, 2011, does not prove negligent maintenance of the roadway on 

the part of ODOT. See Kremser v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-01908-

AD, 2007-Ohio-3100 (holding plaintiff had not provided evidence to prove that the 

pothole which his vehicle struck had been previously patched and had rapidly 
deteriorated). See also Maynard v. Ohio Dept. of Transp., Dist. 10, Ct. of Cl. No. 2004-

03730-AD, 2004-Ohio-3284; Marcis v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-05830-

AD, 2004-Ohio-4830. 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. 

{¶10} 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 his 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 

JOHN M. LAWRENCE 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2011-05220-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: 

John M. Lawrence Jerry Wray, Director 

1109 Brimfield Drive Department of Transportation 

Medina, Ohio 44256 1980 West Broad Street 

 Columbus, Ohio 43223 

SJM/laa 

7/21 

Filed 8/9/11 

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