[Cite as Kaufman v. Ohio Dept. of Transp., 2015-Ohio-5351.]



DONALD KAUFMAN                                        Case No. 2015-00080-AD

       Plaintiff                                      Clerk Mark H. Reed

       v.
                                                      MEMORANDUM DECISION
OHIO DEPARTMENT OF
TRANSPORTATION

       Defendant



        {¶1} Plaintiff Donald Kaufman filed this claim on January 30, 2015 to recover
damages which occurred when his 2011 BMW struck a large chunk of concrete on the
road on January 15, 2015, while traveling on St. Rt. 161 in Union County, Ohio. This
road is a public road maintained by the Ohio Department of Transportation. Plaintiff’s
vehicle sustained damages in the amount of $1,117.24. Plaintiff maintains a collision
insurance deductible of $500.00.
        {¶2} In order to recover on a claim for roadway damages against the Ohio
Department of Transportation, 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 the defendant.
        {¶4} That the defendant knew or should have known about the dangerous road
condition.
        {¶5} That the defendant, 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 the defendant.
Case No. 2015-00080-AD                     -2-              MEMORANDUM DECISION




       {¶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
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 April 13, 2015 the defendant stated that the
location of the incident was on SR 161 in Union County, at mile marker 2.65. This
section of the roadway has an average daily traffic count of between 1,520 and 2,180
vehicles. Despite this volume of traffic, the department had received no notice of road
debris or loose concrete on this road thus, the Court is unable to find that the
department knew about the loose concrete. Within the past six months, the department
had also conducted forty (40) maintenance operations on SR 161 in Union County
without discovering any loose debris or concrete on the roadway.         A review of the
inspections performed by ODOT and submitted to the Court does not show a report of
any loose debris. If any piece of concrete were loose for any appreciable length of time,
it is probable that it would likely have been discovered by the department’s work crews.
Case No. 2015-00080-AD                      -3-              MEMORANDUM DECISION




Thus, the Court cannot find that the department should have known about this loose
concrete.
       {¶10} Under Ohio law, the burden of proof in civil claims like this one rests on the
plaintiff. Admittedly, this places a difficult task on a plaintiff in a loose debris claim
against ODOT. However, this is the law that is binding on this Court at the present time.
       {¶11} Finally, the law in Ohio is that the department 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.
       {¶12} Since the plaintiff is unable to prove that the defendant knew or should
have known about this dangerous condition, the claim must fail.




DONALD KAUFMAN                               Case No. 2015-00080-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
Case No. 2015-00080-AD           -4-            MEMORANDUM DECISION




                                  Clerk

Entry cc:


Donald Kaufman                    Jerry Wray, Director
3630 Dayspring Drive              Ohio Department Of Transportation
Hilliard, Ohio 43026              1980 West Broad Street
                                  Mail Stop 1500
                                  Columbus, Ohio 43223




Filed 9/22/15
Sent to S.C. Reporter 12/21/15
