[Cite as Boseman v. Ohio Dept. of Transp., 2009-Ohio-7131.]
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
VIRGINIA A. BOSEMAN
Plaintiff
v.
OHIO DEPT. OF TRANSPORTATION
Defendant
Case No. 2009-01603-AD
Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION
FINDINGS OF FACT
{¶ 1} 1)
On December 27, 2008, between 4:30 and 5:00 p.m., plaintiff,
Virginia A. Boseman, was traveling north on Interstate 75 to the Galbraith Road ramp in
Hamilton County, when her Toyota Camry struck a large pothole causing substantial
damage to the vehicle.
{¶ 2} 2)
Plaintiff implied that her property damage was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in
maintaining the roadway. Plaintiff filed this complaint seeking to recover $1,185.19, the
total cost of automotive repair she incurred. The filing fee was paid.
{¶ 3} 3)
Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the damage-causing pothole prior to plaintiff’s property
damage incident.
Defendant denied receiving any calls or complaints about this
particular pothole which ODOT located at milepost 11.02 on Interstate 75 in Hamilton
County. Defendant suggested that, “it is likely the pothole existed for only a short time
before the incident.”
{¶ 4} 4)
Defendant contended that plaintiff failed to produce any evidence to
show that the roadway was negligently maintained. Defendant explained that ODOT’s
Hamilton County Manager conducts roadway inspections of all state roadways in
Hamilton County, “at least two times a month.” Apparently, the particular damagecausing pothole was not discovered during the last inspection prior to December 27,
2008.
ODOT records show potholes were last patched in the vicinity of plaintiff’s
incident on August 11, 2008.
CONCLUSIONS OF LAW
{¶ 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 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.
{¶ 7} To prove a breach of duty by defendant to maintain the highways plaintiff
must establish, by a preponderance of the evidence, that ODOT 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.
{¶ 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
defective condition (pothole) developed. Spires v. Ohio Highway Department (1988), 61
Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no evidence of constructive notice of the
pothole.
{¶ 9} 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 plaintiff may have suffered from the
pothole.
{¶ 10} Plaintiff has not shown, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to her, or that her injury was proximately
caused by defendant’s negligence. Plaintiff has failed to show that the damage-causing
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), 9710898-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
VIRGINIA A. BOSEMAN
Plaintiff
v.
OHIO DEPT. OF TRANSPORTATION
Defendant
Case No. 2009-01603-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:
Virginia A. Boseman
9307 Bridgecreek Drive
Cincinnati, Ohio 45231
RDK/laa
10/1
Filed 10/13/09
Sent to S.C. reporter 2/4/10
Jolene M. Molitoris, Director
Department of Transportation
1980 West Broad Street
Columbus, Ohio 43223
