[Cite as Ferguson v. Ohio Dept. of Transp., 2015-Ohio-5353.]



JOSHUA A. FERGUSON                                    Case No. 2015-00302-AD

       Plaintiff                                      Clerk Mark H. Reed

       v.
                                                      MEMORANDUM DECISION
OHIO DEPARTMENT OF
TRANSPORTATION

       Defendant



        {¶1} Plaintiff Joshua A. Ferguson filed this claim on April 6, 2015 to recover
damages which occurred when his vehicle struck a pothole on March 9, 2015 while he
was traveling on I-71 North in Hamilton County, Ohio.               This road is a public road
maintained by the Ohio Department of Transportation.                Plaintiff’s vehicle sustained
damages in the amount of $301.58.
        {¶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.
        {¶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. 2015-00302-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 14, 2015 the defendant stated that the
location of the incident was on IR 71, at interstate mile marker 0.22 in Hamilton County.
This section of the roadway on IR 71 has an average daily traffic count of between
123,690 and 150,930 vehicles.        Despite this volume of traffic, the department had
received no notice of a pothole on this roadway prior to plaintiff’s incident. Thus, the
Court is unable to find that the department knew about the pothole. Within the past six
months, the department conducted three hundred forty-two (342) maintenance
operations on IR 71 in Hamilton 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 the department’s 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 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.
Case No. 2015-00302-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.




JOSHUA A. FERGUSON                         Case No. 2015-00302-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:
Joshua A. Ferguson                          Jerry Wray, Director
911 Caldwell St                             Ohio Department Of Transportation
Piqua, Ohio 45356                           1980 West Broad Street
                                            Mail Stop 1500
                                            Columbus, Ohio 43223
Case No. 2015-00302-AD           -4-   MEMORANDUM DECISION




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