[Cite as Olukoya v. Ohio Dept. of Transp., 2009-Ohio-7158.]

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

DORIS H. OLUKOYA 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-07393-AD 

Clerk Miles C. Durfey 

MEMORANDUM DECISION

FINDINGS OF FACT 

{¶ 1} 1) On February 23, 2009, plaintiff, Doris H. Olukoya, was traveling south 

on Interstate I490 “from E. 55th Street” in Cleveland, when her automobile struck a 

pothole as she “attempted to enter (Interstate) 77 South.” The pothole caused tire and 

wheel damage to plaintiff’s vehicle. 

{¶ 2} 2) Plaintiff asserted that her property damage was proximately caused 

by negligence on the part of defendant, Department of Transportation (ODOT), in failing 

to maintain the roadway free of defects, such as potholes. Plaintiff filed this complaint 

seeking to recover damages in the amount of $250.00, her insurance coverage 

deductible for automotive repair. The $25.00 filing fee was paid and plaintiff requested 

reimbursement of that cost along with her damage claim. 

{¶ 3} 3) 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 explained that the ODOT Cleveland office did receive 

three complaints about potholes on Interstate 490 during February 2009, but two of 
those complaints “are not in the area of plaintiff’s incident.” Defendant pointed out that 

a motorist did complain about a pothole “on February 9, 2009 and it was filled on 

February 18, 2009 which is five days before plaintiff’s incident.” Apparently the pothole 

that was reported on February 9, 2009 and was patched on February 18, 2009 was the 

same pothole that damaged plaintiff’s vehicle. 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.” Defendant asserted that plaintiff failed to produce 

evidence to establish that her property damage was attributable to conduct on the part 

of ODOT personnel. Defendant contended that plaintiff did not offer any evidence to 

prove the length of time the particular pothole existed prior to her property damage 

occurrence. Defendant related that “if ODOT personnel had detected any defects they 

would have been promptly scheduled for repair.” Defendant’s records show potholes 

were patched by ODOT in the vicinity of plaintiff’s incident on September 18, 2008, 

January 5, 2009, and February 6, 2009. There is no patching record submitted 

concerning the pothole that was reported on February 9, 2009 and repaired on February 

18, 2009. 

CONCLUSIONS OF LAW 

{¶ 4} 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. 

{¶ 5} 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. No evidence has shown defendant had actual notice of the 

damage-causing pothole. 

{¶ 6} Therefore, to find liability plaintiff must prove 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 the 

defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio 

Misc. 2d 262, 577 N.E. 2d 458. There is no indication defendant had constructive 

notice of the pothole. 

{¶ 7} Ordinarily in a claim involving roadway potholes, plaintiff must prove that: 

1) defendant had actual or constructive notice of the defective condition 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. A pothole patch which deteriorates in less than ten 

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

Transportation, 2003-01270-AD, 2003-Ohio-2618; Schrock v. Ohio Dept. of Transp, Ct. 

of Cl. No. 2005-02460-AD, 2005-Ohio-2479. Evidence has shown plaintiff’s vehicle was 

damaged by a pothole that had been patched on February 18, 2009 and the repair 

patch had failed by February 23, 2009. 

{¶ 8} The fact that the pothole plaintiff’s car struck deteriorated in a time frame 

of less than one week warrants application of the standard expressed in Matala; Fisher 

v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-04869-AD, 2007-Ohio-5288; Romes v. 

Ohio Dept. of Transp., Ct. of Cl. No. 2008-01286-AD, 2008-Ohio-4624. Defendant is 

liable to plaintiff for the damage claimed $250.00, plus the $25.00 filing fee which may 

be awarded as compensable costs pursuant to R.C. 2335.19. 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 
DORIS H. OLUKOYA 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-07393-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 plaintiff in the amount of $275.00, which includes the filing fee. Court costs are 

assessed against defendant. 

 

 MILES C. DURFEY 

 Clerk 

Entry cc: 

Doris H. Olukoya Jolene M. Molitoris, Director 

P.O. Box 45447 Department of Transportation 

Bedford, Ohio 44145-0447 1980 West Broad Street 

 Columbus, Ohio 43223 

 

RDK/laa 

10/28 

Filed 11/18/09 

Sent to S.C. reporter 3/5/10