2006-Ohio-7201
No. 2006-01521-AD.Court of Claims of Ohio.
Filed June 20, 2006.
Marilyn D. Furey, Cincinnati, Ohio, Plaintiff, Pro se.
Gordon Proctor, Director Department of Transportation, Columbus, Ohio, For Defendant.
MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On January 12, 2006, plaintiff, Marilyn D. Furey, was exiting from Interstate 75 North onto the Mitchell exit ramp when her automobile struck a large pothole causing tire and rim damage.
{¶ 2} 2) Plaintiff filed this complaint seeking to recover $376.62, her total cost of automotive repair and related expenses which plaintiff contends she incurred as a result of negligence on the part of defendant, Department of Transportation (“DOT”), in maintaining the roadway. The $25.00 filing fee was paid.
{¶ 3} 3) Defendant denied liability based on the fact it professed to have no knowledge of the damage-causing pothole prior to plaintiff’s incident. Defendant suggested the pothole plaintiff’s car struck probably existed “for only a short time before the incident.” Defendant denied receiving any prior complaints about the pothole which DOT located at “milepost 6.46 on I-75 in Hamilton County.”
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{¶ 4} 4) Plaintiff did not submit any evidence to establish the length of time the pothole existed prior to the January 12, 2006, property damage event.
{¶ 5} 5) Furthermore, defendant explained a DOT employee conducts roadway inspections of Interstate 76 at least two times a month and any discovered defects are promptly repaired. Defendant contended, plaintiff did not produce sufficient evidence to prove DOT breached any duty of care owed to the traveling public in respect to roadway maintenance.
CONCLUSIONS OF LAW {¶ 6} 1) 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. However, defendant is not an insurer of the safety of its highways. Se Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 18 9 Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723.
{¶ 7} 2) 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. 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.
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{¶ 8} 3) There is no evidence defendant had actual notice of the damage-causing pothole.
{¶ 9} 4) 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 (pothole) developed. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262.
{¶ 10} 5) 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 297.
{¶ 11} 6) In order for there to be constructive notice, plaintiff must show sufficient time has elapsed after the dangerous condition (pothole) appears, so that under the circumstances, defendant should have acquired knowledge of the existence of the defects. Guiher v. Department of Transportation (1978), 78-0126-AD.
{¶ 12} 7) No evidence has shown defendant had constructive notice of the pothole.
{¶ 13} 8) Furthermore, plaintiff has failed to show defendant negligently maintained the roadway.
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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. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
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