[Cite as Roberts v. Ohio Dept. of Transp., Dist. 8, 2010-Ohio-6326.]

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

NICHOLAS L. ROBERTS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DIST. 8 

 Defendant 

Case No. 2010-03606-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Nicholas L. Roberts, filed this against defendant, Department of 

Transportation (ODOT), contending his 2002 Volkswagen Jetta was damaged as a 

proximate cause of negligence on the part of ODOT personnel in maintaining a 

hazardous condition on Interstate 74 in Hamilton County. Specifically, plaintiff asserted 

he suffered tire, wheel, and other damage to his vehicle as a result of striking a pothole 

located near “the I74/I275 split.” Plaintiff recalled the described incident occurred on 

January 31, 2010 at approximately 6:00 p.m. Plaintiff seeks damage recovery in the 

amount of $604.65. The filing fee was paid. 

{¶ 2} Defendant denied liability based on the contention that no ODOT 

personnel had any knowledge of the particular damage-causing pothole prior to 

plaintiff’s January 31, 2010 described occurrence. Defendant located the pothole “near 

milepost 9.00 on I-74 in Hamilton County” and advised that “ODOT did not receive any 

reports of the pothole or have any knowledge of the pothole prior to the (January 31, 

2010) incident.” Defendant asserted that plaintiff failed to produce any evidence to 

establish the length of time the pothole existed on I-74 prior to his damage occurrence. 
Defendant suggested that “it is likely the pothole existed for only a short time before the 

incident.” 

{¶ 3} Furthermore, defendant argued that plaintiff failed to prove the roadway 

was negligently maintained. Defendant explained that the ODOT “Hamilton County 

Manager inspects all state roadways within the county at least two times a month.” 

Apparently no potholes were detected near milepost 9.00 on Interstate 74 the last time 

that section of roadway was inspected before January 31, 2010. The claim file is devoid 

of any roadway inspection records. Defendant did submit “Maintenance Records” for 

Interstate 74 covering the period from July 31, 2009 to January 31, 2010. These 

records show that pothole patching repairs were needed in the vicinity of milepost 9.00 

on November 10, 2009, January 14, 2010, and January 31, 2010, the day of plaintiff’s 

incident. 

{¶ 4} For plaintiff to prevail on a claim of negligence, he must prove, by a 

preponderance of the evidence, that defendant owed him a duty, that it breached that 

duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy 

Company, Inc. 99 Ohio St. 3d 79, , 2003-Ohio-2573, ¶8 citing Menifee v. Ohio Welding 

Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 79, 472 N.E. 2d 707. However, 

“[i]t is the duty of a party on whom the burden of proof rests to produce evidence which 

furnishes a reasonable basis for sustaining his claim. If the evidence so produced 

furnishes only a basis for a choice among different possibilities as to any issue in the 

case, he fails to sustain such burden.” Paragraph three of the syllabus in Steven v. 

Indus. Comm. (1945), 145 Ohio St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and 

followed. 

{¶ 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 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 condition 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. There is no evidence that defendant had actual notice of the 

pothole. Therefore, for the court to find liability on a notice theory, evidence of 

constructive notice of the pothole must be presented. 

{¶ 7} “[C]onstructive notice is that which the law regards as sufficient to give 

notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of 

Fahle (1950), 90 Ohio App. 195, 197-198, 47 O.O. 231, 105 N.E. 2d 429. “A finding of 

constructive notice is a determination the court must make on the facts of each case not 

simply by applying a pre-set time standard for the discovery of certain road hazards.” 

Bussard, at 4. “Obviously, the requisite length of time sufficient to constitute 

constructive notice varies with each specific situation.” Danko v. Ohio Dept. of Transp.

(Feb. 4, 1993), Franklin App. 92AP-1183. In order for there to be a finding of 

constructive notice, plaintiff must prove, by a preponderance of the evidence, that 

sufficient time has elapsed after the dangerous condition appears, so that under the 

circumstances defendant should have acquired knowledge of its existence. Guiher v. 

Dept. of Transportation (1978), 78-0126-AD. 

{¶ 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 pothole 

appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 

2d 262, 577 N.E. 2d 458. No evidence was presented to establish the length of time 

that the particular pothole was present. Size of the defect (pothole) is insufficient to 

show notice or duration of existence. O’Neil v. Department of Transportation (1988), 61 

Ohio Misc. 2d 287, 587 N.E. 2d 891. Plaintiff has failed to prove that defendant had 

constructive notice of the pothole. 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 that plaintiff 

may have suffered from the roadway defect. 

 
 

 

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 

NICHOLAS L. ROBERTS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DIST. 8 

 Defendant 

Case No. 2010-03606-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: 

Nicholas L. Roberts Jolene M. Molitoris, Director 

9033 State Route 730 Department of Transportation 

Clarksville, Ohio 45113 1980 West Broad Street 

 Columbus, Ohio 43223 
RDK/laa 

8/4 

Filed 9/8/10 

Sent to S.C. reporter 12/17/10