[Cite as Toney v. Ohio Dept. of Transp., 2015-Ohio-5356.]



JASON TONEY                                            Case No. 2015-00398-AD

       Plaintiff                                       Clerk Mark H. Reed

       v.
                                                       MEMORANDUM DECISION
OHIO DEPARTMENT OF
TRANSPORTATION

       Defendant



        {¶1} Jason Toney (hereinafter “plaintiff”) filed this claim on April 23, 2015 to
recover damages which occurred when his 2015 Kia Optima struck a large pothole on
March 3, 2015 while he was traveling on I-71 southbound in Fayette County, Ohio. This
road is a public road maintained by the Ohio Department of Transportation (hereinafter
“ODOT”). Plaintiff’s vehicle sustained damages in the amount of $167.19. Plaintiff
maintains a collision insurance deductible of $500.00.
        {¶2} In order to recover on a claim for roadway damages against ODOT, Ohio
law requires that a motorist/plaintiff prove all of the following:
        {¶3} That the plaintiff’s motor vehicle received damages as a result of coming
into contact with a dangerous condition on a road maintained by ODOT.
        {¶4} That ODOT knew or should have known about the dangerous road
condition.
        {¶5} That ODOT, armed with this knowledge, failed to repair or remedy the
dangerous condition in a reasonable time.
        {¶6} In this claim, the Court finds that the plaintiff did prove that his vehicle
received damages and that those damages occurred as a result of the plaintiff’s vehicle
coming into contact with a dangerous condition on a road maintained by ODOT.
        {¶7} The next element that a plaintiff must prove to succeed on a claim such as
this is to show that the defendant knew or should have known about this dangerous
Case No. 2015-00398-AD                      -2-              MEMORANDUM DECISION




condition.   Based on the evidence presented, the Court is unable to find that the
defendant had actual knowledge of the dangerous condition. Likewise, the Court is
unable to find that the defendant should have known about this dangerous condition
and thus would have had constructive notice about the highway danger. Constructive
notice is defined as “(n)otice arising from the presumption of law from the existence of
facts and circumstances that a party has a duty to take notice of...Notice presumed by
law to have been acquired by a person and thus imputed to that person.” (Black’s Law
Dictionary at 1090 8th Ed. 2004.)
       {¶8} In order for there to be constructive notice, a plaintiff must prove that
sufficient time has passed after the dangerous condition first appears, so that under the
circumstances the defendant should have gained knowledge of its existence. This, the
plaintiff has been unable to do.
       {¶9} In the Investigation Report filed July 7, 2015, ODOT indicated that the
location of the incident was on IR 71, between mile markers 70.0 and 76.0 in Fayette
County. This section of the roadway on IR 71 has an average daily traffic count of
between 27,980 and 37,950 vehicles.         Despite this volume of traffic, ODOT had
received no notice of a pothole on this roadway prior to plaintiff’s incident. Thus, the
Court is unable to find that ODOT knew about the pothole. Within the past six months,
ODOT conducted one hundred seven (107) maintenance operations on IR 71 in Fayette
County where this incident occurred. If any pothole was present for any appreciable
length of time, it is probable that it would likely have been discovered by ODOT work
crews. It is thus likely that the pothole developed only shortly before plaintiff struck it
with his vehicle. Finally, the law in Ohio is that ODOT is not an absolute insurer of a
motorist’s safety on the highway. The department is only liable for damage when the
Court finds that it was negligent. This the Court is unable to do.
Case No. 2015-00398-AD                    -3-               MEMORANDUM DECISION




      {¶10} Since the plaintiff is unable to prove that the defendant knew or should
have known about this dangerous condition, the claim must fail.




JASON TONEY                                Case No. 2015-00398-AD

      Plaintiff                            Clerk Mark H. Reed

      v.
                                           ENTRY OF ADMINISTRATIVE
OHIO DEPARTMENT OF                         DETERMINATION
TRANSPORTATION

      Defendant

      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 shall be absorbed by the Court.




                                            MARK H. REED
                                            Clerk
Entry cc:
Jason Toney                                 Jerry Wray, Director
611 Blanche Avenue                          Ohio Department Of Transportation
Cincinnati, Ohio 45215                      1980 West Broad Street
                                            Mail Stop 1500
                                            Columbus, Ohio 43223
Case No. 2015-00398-AD           -4-   MEMORANDUM DECISION




Filed 9/23/15
Sent to S.C. Reporter 12/21/15
