[Cite as Williams v. Ohio Dept. of Transp., 2010-Ohio-4034.]

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

SHAKIM WILLIAMS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-09752-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

FINDINGS OF FACT 

{¶ 1} 1) On December 14, 2009, at approximately 5:00 a.m., plaintiff, Shakim 

Williams, was traveling south on Interstate 270 in Franklin County, when his 2000 

Toyota Camry struck a pothole causing rim and tire damage to the vehicle. 

{¶ 2} 2) Plaintiff asserted that the damage to his car was proximately caused 

by negligence on the part of defendant, Department of Transportation (ODOT), in failing 

to maintain the roadway free of hazards such as potholes. Plaintiff filed this complaint 

seeking to recover $169.32, the stated cost of replacement tires. Payment of the filing 

fee was waived. 

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

personnel had any knowledge of the particular pothole on the roadway prior to plaintiff’s 

property damage occurrence. Defendant advised that phone logs show no complaints 

were on file regarding the specific damage-causing pothole which ODOT located “at 

approximately milepost 43.08 on I-270 in Franklin County.” Defendant asserted that 

plaintiff failed to offer any evidence to prove his property damage was attributable to 
conduct on the part of ODOT personnel. Defendant suggested, “it is more likely than 

not that the pothole existed in that location for only a relatively short amount of time 

before plaintiff’s incident.” Defendant explained that the ODOT “Franklin County 

Manager conducts roadway inspections on all state roadways within the county on a 

routine basis, at least one to two times a month.” Apparently no potholes were 

discovered at milepost 43.08 on Interstate 270 the last time that section of roadway was 

inspected before December 2009. Defendant’s maintenance records show that “five (5) 

pothole patching operations were conducted in the general vicinity of plaintiff’s incident.” 

The maintenance record (copy submitted) indicates that ODOT crews patched potholes 

in the area including milepost 43.08 on July 8, 2009, July 9, 2009, July 16, 2009, July 

17, 2009, and October 30, 2009. Defendant contended that plaintiff failed to produce 

any evidence to establish the length of time the pothole existed prior to 5:00 a.m. on 

December 14, 2009. Defendant stated that, “if ODOT personnel had detected any 

potholes they would have been reported and promptly scheduled for repair.” 

{¶ 4} 4) Despite filing a response, plaintiff did not produce evidence to 

establish the length of time that the pothole at milepost 43.08 existed prior to 5:00 a.m. 

on December 14, 2009. Plaintiff acknowledged that “I, the plaintiff, in no way feel there 

was any neglect in the maintaining of the roads by ODOT.” Plaintiff suggested the 

pothole his vehicle struck may “have been overlooked” during roadway inspection. 

Plaintiff admitted he has no evidence to show the length of time the pothole was on the 

roadway prior to his incident. 

CONCLUSIONS OF LAW 

{¶ 5} 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 179, 472 N.E. 2d 707. Plaintiff 

has the burden of proving, by a preponderance of the evidence, that he suffered a loss 

and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio 

State University (1977), 76-0368-AD. However, “[it] 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. 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 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. 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, 48 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; Gelarden v. Ohio Dept. of Transp., Dist. 4, 

Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047. 

{¶ 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 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 

SHAKIM WILLIAMS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-09752-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: 

Shakim Williams Jolene M. Molitoris, Director 

5415 B2 Yorkshire Terrace Department of Transportation 

Columbus, Ohio 43232 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

4/7 

Filed 4/28/10 

Sent to S.C. reporter 8/26/10