2005-Ohio-4863

Raymond E. Adamic, Plaintiff, v. Ohio Department of Transportation, District 12, Defendant.

No. 2005-06821-AD.Court of Claims of Ohio.
August 30, 2005.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Raymond E. Adamic, 29472 Sayle Drive, Willoughby Hills, Ohio 44092, Plaintiff, Pro se.

Gordon Proctor, Director, Department of Transportation, 1980 West Broad Street, Columbus, Ohio 43223, for Defendant.

MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On May 3, 2005, at approximately 4:00 p.m., plaintiff, Raymond E. Adamic, was traveling south exiting Interstate 71 in Cuyahoga County, when his automobile struck a large pothole on the freeway exit ramp. This pothole, estimated at 30″ wide and 14″ deep caused tire and wheel damage to plaintiff’s vehicle.

{¶ 2} 2) Plaintiff filed this complaint seeking to recover $919.92, the cost of replacement parts and automotive repair necessitated by the May 3, 2005, event. Plaintiff implied the damage to his car was proximately caused by 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 contention that no DOT personnel had any knowledge of the pothole on the freeway exit ramp prior to plaintiff’s May 3, 2005, property damage occurrence. Defendant located the damage-causing pothole at about milepost 7.8 on State Route 237 in Cuyahoga County. Defendant asserted plaintiff failed to produce any evidence showing how long the pothole existed prior to 4:00 p.m. on May 3, 2005.

{¶ 4} 4) Defendant denied receiving any calls or complaints regarding the particular pothole before plaintiff’s incident. Defendant explained DOT employees conduct roadway inspections, “at least two times a month.” Apparently no potholes were discovered during previous roadway inspections. Defendant suggested the pothole likely, “existed for only a short time before the incident,” forming the basis of this claim. Defendant denied DOT employees were negligent in regard to roadway maintenance.

{¶ 5} 5) In his response to defendant’s investigation report, plaintiff noted he drove over multiple potholes on the Interstate 71 exit ramp on April 25, 2005, and did not suffer any apparent damage to his car. Plaintiff seemingly implied one of the potholes his car struck on April 25, 2005, was the same pothole which damaged his vehicle on May 3, 2005. Defendant did not submit any record of conducting pothole patching operations on the Interstate 71 exit ramp between April 25, 2005, and May 3, 2005. Plaintiff related the ramp was repaved at sometime before June 7, 2005.

CONCLUSIONS OF LAW {¶ 6} 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. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723.

{¶ 7} 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.

{¶ 8} Plaintiff as not produced sufficient evidence to indicate the length of time the particular pothole was present on the roadway prior to the incident forming the basis of this claim. Plaintiff has not shown defendant had actual notice of the pothole for a sufficient length of time to invoke liability. 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 the pothole appeared on the roadway. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. There is no indiction defendant had constructive notice of the pothole. Plaintiff has not produced any evidence to infer 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. 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. Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole.

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.