[Cite as Montemarano v. Ohio Dept. of Transp., Dist. 6, 2011-Ohio-5115.]

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

SUSAN MONTEMARANO 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6 

 Defendant 

Case No. 2011-01925-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

FINDINGS OF FACT 

{¶1} In her complaint, plaintiff, Susan Montemarano, stated that on January 14, 

2011, at approximately 6:00 a.m., she was traveling west on Dempsey Road when “as 

(I) turned right on to Westerville Rd. I hit a pothole. By the time I reached 270 the tire 

was flat.” 

{¶2} Plaintiff contends her property damage was proximately caused by 

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

maintain the roadway. Consequently, plaintiff filed this complaint seeking to recover 

$268.48, the cost of replacement parts and associated repair expenses. The filing fee 

was paid. 

{¶3} Defendant denies liability in this matter based on the contention that no 

DOT personnel had any knowledge of the pothole prior to plaintiff’s property-damage 

event. Defendant states the pothole was located at milepost 25.60 on SR 3 in Franklin 

County. Defendant denies receiving any previous reports of the damage-causing 

pothole which plaintiff encountered. Defendant suggests, “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.” 

{¶4} Furthermore, defendant asserts plaintiff has not produced evidence to 

show DOT negligently maintained the roadway. Defendant explains that the DOT 

Franklin 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 at milepost 25.60 on SR 3 in the vicinity of plaintiff’s incident 

the last time this roadway was inspected prior to January 14, 2011. Defendant stated 

that “[a] review of the six-month maintenance history [record submitted] for the area in 

question reveals that four (4) pothole patching operation were conducted in the same 

location as plaintiff’s incident. (Emphasis added.) Defendant maintains that “if ODOT 

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

repair.” 

{¶5} Plaintiff filed a response wherein she alleged that the pothole she hit had 

been previously repaired, the repair had deteriorated, and that several other persons 

had also sustained damage to their vehicles from hitting the same pothole. 

CONCLUSIONS OF LAW 

{¶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 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. 

{¶8} To prove a breach of duty by defendant to maintain the highways plaintiff 

must establish, by a preponderance of the evidence, that DOT 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. No evidence has shown that defendant had actual notice of the 

damage-causing pothole. 

{¶9} 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 (pothole) developed. Spires v. Ohio Highway Department (1988), 61 

Ohio Misc. 2d 262, 577 N.E. 2d 458. 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. There is insufficient evidence to show defendant had 

constructive notice of the pothole. 

{¶10} Plaintiff has not produced any evidence other than her own assertions 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. A pothole patch which deteriorates in less than 

ten days is prima facie evidence of negligent maintenance. Matala v. Ohio Department 

of Transportation, Ct. of Cl. No. 2003-01270-AD, 2003-Ohio-2618; Schrock v. Ohio 

Dept. of Transp., Ct. of Cl. No. 2005-02460-AD, 2005-Ohio-2479. Although defendant 

was patching potholes on SR 3 as recently as January 10, 2011, such patching 

operation extended from milepost 21.20 to 26.10. Defendant did not indicate that 

patching was performed at the specific location of plaintiff’s incident. See Pinnick v. 

Ohio Dept. of Transp., 2010-12761-AD. Therefore, defendant is not liable for any 

damage plaintiff may have suffered from the pothole. 

{¶11} Plaintiff has not shown, by a preponderance of the evidence, that 

defendant failed to discharge a duty owed to her or that her property damage was 

proximately caused by defendant’s negligence. Plaintiff failed to show that the damagecausing pothole was connected to any conduct under the control of defendant or that 

there was any 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.
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 

SUSAN MONTEMARANO 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6 

 Defendant 

Case No. 2011-01925-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: 

Susan Montemarano Jerry Wray, Director 

1346 Spring Brook Court Department of Transportation 

Westerville, Ohio 43081 1980 West Broad Street 

 Columbus, Ohio 43223 

SJM/laa 

5/6 

Filed 6/27/11 

Sent to S.C. reporter 10/4/11