[Cite as Carson v. Ohio Dept. of Transp., 2010-Ohio-4584.]

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

MICHAEL L. CARSON 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-01581-AD 

Clerk Miles C. Durfey 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Michael L. Carson, filed this action against defendant, 

Department of Transportation (ODOT), contending that his truck was damaged as a 

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

roadway condition on Interstate 70 West in Franklin County. Plaintiff described the 

particular damage incident noting that: “I was getting on I 270 S from I 70 W leaving 

Pickerington, about a half mile from the on ramp on the left side of the far right lane I hit 

a pot hole” causing tire and rim damage. Plaintiff filed this complaint requesting 

damage recovery in the amount of $751.00, the stated cost of replacement parts 

resulting from the described incident. Plaintiff recalled that his damage incident 

occurred on January 11, 2010 at approximately 7:40 p.m. 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 11, 2010 described occurrence. Defendant located the particular 

pothole between “state mileposts 108.77 to 109.0 on I-70 westbound to southbound I270 in Franklin County.” Defendant explained that ODOT records show no reports of a 
pothole at the location indicated were recorded prior to plaintiff’s damage event. 

Defendant related that ODOT received two complaints of potholes on Interstate 70 (on 

December 14, 2009 and January 14, 2010) “but they are not in the same location as 

plaintiff’s incident.” Furthermore, defendant related that ODOT records show fifteen 

complaints (copies submitted) were received on January 11, 2010 for potholes on 

Interstate 270 “but these are not in the same location as plaintiff’s.” Defendant argued 

that plaintiff did not provide any evidence to establish the length of time the particular 

pothole was present on the roadway prior to January 11, 2010. Defendant suggested 

that “it is more likely than not the pothole existed in that location for only a relatively 

short amount of time before plaintiff’s incident.” 

{¶ 3} Additionally, defendant contended that plaintiff did not offer any evidence 

to prove that the roadway was negligently maintained. Defendant advised 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 in the vicinity of plaintiff’s incident the last time that section of 

roadway was inspected prior to January 11, 2020. Defendant asserted that “I-270 was 

in good condition at the time and in the general vicinity of plaintiff’s incident.” Defendant 

stated that, “[a] review of the six-month maintenance history (record submitted) for the 

area in question reveals that no repairs were made for westbound I-70 and six (6) 

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

on southbound I-270;” the last time pothole patching operations were conducted before 

January 11, 2010 was January 9, 2010. Defendant noted, “that if ODOT personnel had 

detected any defects they would have been promptly scheduled for repair.” 

{¶ 4} Plaintiff filed a response arguing that, “[t]he hole may have been there for 

some time and was either un-noticed or considered acceptable for a matter of time 

leading up to the time of the event at hand.” Plaintiff asserted that due to inclement 

weather conditions defendant should have conducted roadway inspections with more 

frequency. Plaintiff did not supply any evidence to establish the length of time that the 

particular damage-causing pothole was present on the roadway prior to 7:40 p.m. on 

January 11, 2010. 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. 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 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 defendant had actual notice of the pothole 

on Interstate 70 prior to the night of January 11, 2010. 

{¶ 7} Therefore, to find liability, plaintiff must prove that ODOT had constructive 

notice of the defect. 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 defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio 

Misc. 2d 262, 577 N.E. 2d 458. 

{¶ 8} In order for there to be constructive notice, plaintiff must show 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 . Size of the defect 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. “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, 31 Ohio Misc. 2d 1, 31 

OBR 64, 507 N.E. 2d 1179. “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. No evidence has shown that 

ODOT had constructive notice of the pothole. 

{¶ 9} Generally, in order to recover in a suit involving damage proximately 

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

defendant had actual or constructive notice of the potholes 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. The fact that defendant’s “Maintenance History” reflects pothole 

repairs were made in the vicinity of plaintiff’s incident on various occasions does not 

prove negligent maintenance of the roadway on the part of ODOT. 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 plaintiff may have suffered from the pothole. 

{¶ 10} In the instant claim, plaintiff has failed to introduce sufficient evidence to 

prove that defendant maintained a known hazardous roadway condition. Plaintiff failed 

to prove his property damage was connected to any conduct under the control of 

defendant, or that defendant was negligent in maintaining the roadway area, or that 

there was any actionable negligence on the part of defendant. Taylor v. Transportation 

Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-

10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. 

Consequently, plaintiff’s claim is denied. 

 

 

 

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 

MICHAEL L. CARSON 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-01581-AD 

Clerk Miles C. Durfey 

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. 

 

 ________________________________ 

 MILES C. DURFEY 

 Clerk 

Entry cc: 

Michael L. Carson Jolene M. Molitoris, Director 

134 Somer Street Department of Transportation 

Hillsboro, Ohio 45133 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

4/27 

Filed 5/14/10 

Sent to S.C. reporter 9/17/10