[Cite as Nichols v. Ohio Dept. of Transp., Dist. 6, 2010-Ohio-6557.]

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

DARRELL L. NICHOLS, JR. 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DISTRICT 6 

 Defendant 

Case No. 2010-05641-AD 

Clerk Miles C. Durfey 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Darrell L. Nichols, Jr., filed this action against defendant, 

Department of Transportation (ODOT), contending that his 1995 Honda Civic was 

damaged as a proximate cause of negligence on the part of ODOT in maintaining a 

hazardous condition on US Route 33 in Union County. Plaintiff recalled that he was 

driving west on US Route 33 on February 21, 2010 at approximately 6:30 p.m. when his 

vehicle struck “a pothole near the centerline in the right hand lane” causing tire and rim 

damage to the car. Plaintiff requested damage recovery in the amount of $548.42, the 

total cost of replacement parts. The filing fee was paid and plaintiff requested 

reimbursement of that cost along with his damage claim. 

{¶ 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 February 21, 2010 described occurrence. Defendant located the pothole “at 

approximately milepost 20.37 on US 33 in Union County.” Defendant explained that 

ODOT records show no prior reports of a pothole at the location despite the fact that the 

particular section of roadway on US 33 “has an average daily traffic count between 
35,020 and 40,760 vehicles.” Defendant argued that plaintiff did not provide any 

evidence to establish the length of time that the particular pothole at milemarker 20.37 

was present on the roadway prior to 6:30 p.m. on February 21, 2010. 

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

prove that the roadway was negligently maintained. Defendant stated that, “[a] review 

of the six-month maintenance history (record submitted) for the area in question reveals 

that no (0) pothole patching operations were conducted in the general vicinity of 

plaintiff’s incident. Defendant noted, “that if ODOT personnel had detected any defects 

they would have been promptly scheduled for repair.” 

{¶ 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. 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 that defendant had actual notice of the 

pothole on US Route 33 prior to the evening of February 21, 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 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 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. The fact that defendant’s “Maintenance History” reflects no 

pothole repairs were made in the vicinity of plaintiff’s incident in the six-month period 

preceding February 21, 2010 does not prove negligent maintenance of the roadway on 

the part of ODOT. 

{¶ 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 introduce sufficient evidence to prove that defendant maintained a known 
hazardous roadway condition. Plaintiff has failed to prove that his property damage was 

connected to any conduct under the control of defendant, that defendant was negligent 

in maintaining the roadway area, or that there was any actionable negligent conduct on 

the part of defendant in regard to pothole repair. 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. 

 

 

 

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 

DARRELL L. NICHOLS, JR. 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DISTRICT 6 

 Defendant 

Case No. 2010-05641-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: 

Darrell L. Nichols, Jr. Jolene M. Molitoris, Director 

758 Carrs Run Road Department of Transportation 

Waverly, Ohio 45690 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

8/20 

Filed 9/20/10 

Sent to S.C. reporter 12/29/10