[Cite as Owens v. Ohio Dept. of Transp., Dist. 2, 2010-Ohio-5822.]

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 

GERALD L. OWENS 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DISTRICT 2 

 Defendant 

Case No. 2009-08641-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION 

FINDINGS OF FACT 

{¶ 1} 1) On April 5, 2008, at approximately 6:20 a.m., plaintiff, Gerald Owens, 

was traveling on Interstate 75 “near the 108 Marker” in Lucas County when his 2002 

Jaguar struck a pothole causing tire, rim, and strut damage to the vehicle. Plaintiff 

contended the damage to his car was proximately caused by negligence on the part of 

defendant, Department of Transportation (ODOT), in maintaining a hazardous condition 

on the roadway. Plaintiff filed this complaint requesting damages in the amount of 

$2,500.00, representing stated automotive repair costs. In his complaint, plaintiff noted 

the pothole his vehicle struck caused damage to two tires, two rims, and two struts. 

Attached to the complaint was a copy of a vehicle repair estimate with a total estimated 

repair costs of $3,305.92. This estimate represents the total repair cost for replacing 

two tires, four rims, and four struts. The filing fee was paid. 

{¶ 2} 2) Defendant filed an investigation report admitting liability for plaintiff’s 

property damage caused by the pothole on Interstate 75. Defendant asserted plaintiff’s 

damages in this claim should be limited to the total cost of replacing two tires, two rims, 

and two struts. 
CONCLUSIONS OF LAW 

{¶ 3} 1) 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. Plaintiff 

has the burden of proving, by a preponderance of the evidence, that he 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. 

{¶ 4} 2) Defendant has the duty to maintain its highway 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. 

{¶ 5} 3) In order to recover in any suit involving injury 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. Plaintiff has proven his property damage was proximately caused by 

negligence on the part of ODOT in failing to timely correct a hazardous roadway 

condition. Fite v. Dept. of Transp., Ct. of Cl. No. 2009-05757-AD, jud. aff. (12-18-09), 

2009-Ohio-7124. 

{¶ 6} 4) As trier of fact, this court has the power to award reasonable 
damages based on evidence presented. Sims v. Southern Ohio Correctional Facility

(1988), 61 Ohio Misc. 2d 239, 577 N.E. 2d 160. 

{¶ 7} 5) Damage assessment is a matter within the function of the trier of fact. 

Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462. 

Reasonable certainty as to the amount of damages is required, which is that degree of 

certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement 

Sys. Of Ohio (1995), 102 Ohio App. 3d 782, 658 N.E. 2d 31. 

{¶ 8} 6) Plaintiff has suffered damages in the amount of $1,758.64, the total 

cost of replacing two tires, two rims, and two struts. Therefore, defendant is liable to 

plaintiff in the amount of $1,758.64, the cost of automotive repair, plus the $25.00 filing 

fee, which may be awarded as costs pursuant to R.C. 2335.19. See Bailey v. Ohio 

Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 

990. 

 

 

 

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 

GERALD L. OWENS 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DISTRICT 2 

 Defendant 

Case No. 2009-08641-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 plaintiff in the amount of $1,783.64, which includes the filing fee. Court costs are 

assessed against defendant. 

 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Gerald L. Owens Jolene M. Molitoris, Director 

405 Quackenbos Street N.W. Department of Transportation 

Washington, DC 20011 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

6/18 

Filed 8/3/10 

Sent to S.C. reporter 11/23/10