[Cite as Sheppard v. Ohio Dept. of Transp., 2011-Ohio-6911.]

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

CLARK L. SHEPPARD 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant

Case No. 2011-06081-AD 

Acting Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} On February 13, 2011, at approximately 12:15 a.m., plaintiff, Clark 

Sheppard, was traveling south on Interstate 75 “between SR 35 and exit 51” when he 

“hit a very large pothole.” Plaintiff asserted the impact caused substantial damage to 

his 2002 BMW. Plaintiff asserted that the damage to the automobile was proximately 

caused by negligence on the part of defendant, Department of Transportation (DOT), in 

failing to maintain the roadway free of hazardous conditions. Plaintiff filed this complaint 

seeking to recover $658.73, which represents related repair costs and reimbursement of 

mileage expenses in transporting the car to a repair facility. The filing fee was paid. 

{¶2} Defendant explained that the roadway area where plaintiff’s incident 

occurred was within the limits of a working construction project under the control of 

ODOT contractor, The Ruhlin Company (Ruhlin). Defendant related that the particular 

construction project “dealt with grading, draining, paving with asphalt concrete and 

repair several structures in Montgomery County on I-75 between state mileposts 52.00 

to 53.18.” Plaintiff’s damage incident occurred within the project limits. 

{¶3} Defendant asserted that this particular construction project was under the 

control of Ruhlin and consequently ODOT had no responsibility for any damage or 
mishap on the roadway within the construction project limits. Defendant argued that 

Ruhlin, by contractual agreement, was responsible for maintaining the roadway within 

the construction zone. Therefore, ODOT contended that Ruhlin is the proper party 

defendant in this action. Defendant implied that all duties such as the duty to inspect, 

the duty to warn, the duty to maintain, and the duty to repair defects were delegated 

when an independent contractor takes control over a particular section of roadway. 

Furthermore, defendant contended that plaintiff failed to introduce sufficient evidence to 

prove his damage was proximately caused by roadway conditions created by ODOT or 

its contractors. All construction work was to be performed in accordance with ODOT 

requirements and specifications and subject to ODOT approval. 

{¶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 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, “[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. The duty of ODOT to maintain the roadway in a 

safe drivable condition is not delegable to an independent contractor involved in 
roadway construction. ODOT may bear liability for the negligent acts of an independent 

contractor charged with roadway construction. Cowell v. Ohio Department of 

Transportation, Ct. of Cl. No. 2003-09343-AD, jud, 2004-Ohio-151. Despite defendant’s 

contentions that ODOT did not owe any duty in regard to the construction project, 

defendant was charged with duties to inspect the construction site and correct any 

known deficiencies in connection with the particular construction work. See Roadway 

Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119. 

{¶6} Alternatively, defendant denied that either ODOT or Ruhlin had any notice 

“of the pothole on I-75 prior to plaintiff’s incident.” Defendant pointed out ODOT 

records “indicate that there were no complaints for potholes on I-75.” Defendant argued 

that plaintiff failed to produce any evidence to prove the damage-causing pothole was 

attributable to any conduct on either the part of ODOT or Ruhlin. Defendant submitted 

documents which indicate Ruhlin was notified of the pothole at approximately 11:00 

a.m. on February 14, 2011, on I-75, and that repairs were completed by 1:30 p.m.. 

{¶7} In order to find liability for a damage claim occurring in a construction 

area, the court must look at the totality of the circumstances to determine whether 

ODOT acted in a manner to render the highway free from an unreasonable risk of harm 

for the traveling public. Feichtner v. Ohio Dept. of Transp. (1995), 114 Ohio App. 3d 

346, 683 N.E. 2d 112. In fact, the duty to render the highway free from an 

unreasonable risk of harm is the precise duty owed by ODOT to the traveling public 

under both normal traffic and during highway construction projects. See e.g. White v. 

Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, 42, 564 N.E. 2d 462. 

{¶8} Ordinarily 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. However, proof of notice of a dangerous condition is not 

necessary when defendant’s own agents actively cause such condition. Bello v. City of 
Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the syllabus; 

Sexton v. Ohio Department of Transportation (1996), 94-13861. There is no evidence 

to show that any construction activity caused the pothole. 

{¶9} Generally, in order to recover in any suit involving injury proximately 

caused by roadway conditions including potholes, plaintiff must prove that either: 1) 

defendant had actual or constructive notice of the pothole and failed to respond in a 

reasonable time or responded in a negligent manner, or 2) that defendant, in a general 

sense, maintains its highways negligently. Denis v. Department of Transportation

(1976), 75-0287-AD. Plaintiff has not produced any evidence to indicate the length of 

time that the pothole was present on the roadway prior to the incident forming the basis 

of this claim. No evidence has been submitted to show that defendant had actual notice 

of the pothole. Additionally, 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. There is no indication that defendant had 

constructive notice of the pothole. 

{¶10} 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. 

Plaintiff has failed to prove that his damage was proximately caused by any negligent 

act or omission on the part of ODOT or its agents. See Stoetzer v. Ohio Dept. of 

Transp., Ct. of Cl. No. 2010-07156-AD, 2010-Ohio-6650;Gaskins v. Dept. of Transp., 

Ct. of Cl. No. 2010-04904-AD, 2010-Ohio-6552.
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 

CLARK L. SHEPPARD 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant

Case No. 2011-06081-AD 

Acting 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 

 Acting Clerk 

Entry cc: 

Clark L. Sheppard Jerry Wray, Director 

1568 N. Webb Road Department of Transportation 

Wilmington, Ohio 45177 1980 West Broad Street 

 Columbus, Ohio 43223 

8/2 

Filed 8/11/11 

Sent to S.C. reporter 1/3/12