[Cite as Wieman v. Ohio Dept. of Transp., 2010-Ohio-6327.]

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 E. WIEMAN 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-04076-AD 

Clerk Miles C. Durfey 

MEMORANDUM DECISION

{¶ 1} Plaintiff, John E. Wieman, filed this action against defendant, Department 

of Transportation (ODOT), contending that his 1989 Honda Accord was damaged as a 

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

condition on State Route 264 in Hamilton County. In his complaint, plaintiff provided a 

narrative description of the particular damage event noting that: “[o]n January 7, 2010 

at 8:45 p.m. during a 5-7 inch snowfall, while on State Route 264 (6300 Block of 

Glenway Ave.) I was heading north and hit an unseen pothole on the snow covered 

pavement.” Plaintiff requested damage recovery in the amount of $591.29, the total 

cost of replacement parts and related repair expense. Payment of the filing fee was 

waived. 

{¶ 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 January 7, 2010 described occurrence. Defendant located the pothole 

“between milepost 8.7 and 8.8 on SR 264 in Hamilton County” and advised that “ODOT 

did not receive any reports of the pothole or have any knowledge of the pothole prior to 
the (January 7, 2010) incident.” Defendant asserted that plaintiff failed to produce any 

evidence to establish the length of time the pothole existed on State Route 264 prior to 

his damage occurrence. Defendant suggested that “it is likely the pothole existed for 

only a short time before the incident.” 

{¶ 3} Furthermore, defendant argued that plaintiff failed to prove that the 

roadway was negligently maintained. Defendant explained that the ODOT “Hamilton 

County Manager inspects all state roadways within the county at least two times a 

month.” Apparently no potholes were detected between mileposts 8.7 and 8.8 on State 

Route 264 the last time that section of roadway was inspected before January 7, 2010. 

The claim file is devoid of any roadway inspection records. Defendant did submit 

“Maintenance Records” for State Route 264 covering the period from July 7, 2009 to 

January 7, 2010. These records show that pothole patching repairs were needed in the 

vicinity of mileposts 8.7 and 8.8 on August 18, 2009 and December 30, 2009. 

{¶ 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. 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. 

{¶ 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 presented. 

{¶ 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 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; Gelarden v. Ohio Dept. of Transp., Dist. 4, Ct. of Cl. 

No. 2007-02521-AD, 2007-Ohio-3047. 

{¶ 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 length of 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. 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 

JOHN E. WIEMAN 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-04076-AD 

Clerk Miles C. Durfey 

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. 

 

 ________________________________ 

 MILES C. DURFEY 

 Clerk 

Entry cc: 

John E. Wieman Jolene M. Molitoris, Director 
5745 Green Acres Court Department of Transportation 

Cincinnati, Ohio 45248 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

8/9 

Filed 9/2/10 

Sent to S.C. reporter 12/17/10