[Cite as Tice v. Dept. of Transp., 2010-Ohio-6657.]

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

CHARLES T. TICE 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-04173-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Charles T. Tice, filed this action against defendant, Department of 

Transportation (ODOT), alleging his 1999 Dodge Ram pickup truck was damaged as a 

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

condition on Interstate 71 South in Richland County. In his complaint, plaintiff offered 

the following narrative description of his damage incident noting: “I was traveling south 

on Interstate 71 middle lane at mile marker unknown 1 mile north of exit 169 on Jan 

15th 2010. I hit a deep pothole which caused my hood to become unlatched, coming up 

and hitting my windshield which caused damage to my hood, windshield, cablights, 

grille (attached to hood) and windshield wipers.” Plaintiff submitted photographs 

depicting damage on his truck. Plaintiff requested damages in the amount of $1,794.42, 

his stated cost of truck repair. Plaintiff submitted a repair estimate from an auto body 

shop dated January 28, 2010 containing a total cost of repairing the 1999 Dodge Ram 

at $1,631.92. The $25.00 filing fee was paid and plaintiff requested reimbursement of 

that cost along with his damage claim. 

{¶ 2} Defendant explained the particular roadway area on Interstate 71 where 
plaintiff’s described incident occurred “was under warranty by Shelly & Sands Inc.” 

(Shelly), an ODOT contractor. From defendant’s investigation and plaintiff’s description 

it appears that the alleged January 15, 2010 property damage event occurred at 

milepost 170.00 on Interstate 71 in Richland County. According to defendant, “the 

warranty will last for the section of road where plaintiff had his incident until December 

14, 2012.” Defendant asserted Shelly assumed the maintenance responsibility for the 

section of roadway on Interstate 71 from milepost 164.58 to 171.64 and consequently, 

Shelly “is responsible for any occurrences or mishaps in the area in which they are 

working.” Therefore, defendant seemingly argued Shelly should be the proper party 

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

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

Shelly. Defendant submitted an ODOT “Maintenance History” for Interstate 71 covering 

the period from July 1, 2009 to January 15, 2010. According to the submitted 

“Maintenance History,” ODOT personnel assumed the duty of repairing potholes on the 

area of roadway warranted by Shelly. ODOT crews patched potholes in the vicinity of 

milepost 170.00 on Interstate 71 in Richland County on January 6, 2010, January 8, 

2010, and January 12, 2010. Defendant also submitted documentation showing Shelly 

personnel patched potholes in the vicinity of milepost 170.00 on Interstate 71 on 

January 13, 2010 and January 14, 2010. ODOT records show four tons of patching 

material were used to repair potholes during operations on January 6, 2010, January 8, 

2010, and January 12, 2010. Defendant advised that all pothole patching operations on 

Interstate 71 ceased “at noon on January 15, 2010 because of the regulation within the 

warranty work.” 

{¶ 3} Defendant asserted that neither ODOT nor Shelly had any knowledge of a 

pothole within the vicinity of milepost 170.00 on Interstate 71 prior to plaintiff’s stated 

January 15, 2010 incident. Defendant’s records show no calls or complaints were 

received at the ODOT Richland County Garage regarding a pothole at milepost 170.00 

on Interstate 71. Defendant argued plaintiff has failed to prove his property damage 

was attributable to any conduct on either the part of ODOT or Shelly. Defendant 

suggested that the property damage plaintiff claimed was not caused by a roadway 

defect, but due to an incorrectly latched or defective hood on plaintiff’s vehicle. Plaintiff 

did not respond. 
{¶ 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. 

{¶ 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 a pothole 

on Interstate 71 at milemarker 170.00 on January 15, 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 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. 92AP1183. Evidence of constructive notice is inconclusive considering the amount of pothole 

patching that was conducted by both ODOT and Shelly in the days prior to January 15, 

2010. 

{¶ 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. 

{¶ 11} Furthermore, it should be noted that the credibility of witnesses and the 

weight attributable to their testimony are primarily matters for the trier of fact. State v. 

DeHass (1967), 10 Ohio St. 2d 230, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of 

the syllabus. The court is free to believe or disbelieve, all or any part of each witness’s 

testimony. State v. Antill (1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. 

The court finds the assertion of plaintiff regarding the cause of the damage claimed to 

not be particularly persuasive. 

 

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 

CHARLES T. TICE 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-04173-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: 

Charles T. Tice Jolene M. Molitoris, Director 

4015 St. Rd. 38 Department of Transportation 

Richmond, Indiana 47374 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

9/16 

Filed 11/10/10 

Sent to S.C. reporter 2/11/11