2007-Ohio-1616
No. 2006-07147-AD.Court of Claims of Ohio.
February 22, 2007.
MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On October 29, 2006, at approximately 10:00 a.m., plaintiff, Bruce D. Bregenzer, was traveling north on Interstate 77 in Broadview Heights, Ohio, when his automobile struck a pothole in the roadway causing tire damage to the vehicle.
{¶ 2} 2) Plaintiff filed this complaint seeking to recover $630.00, the cost of replacement parts and automotive repair necessitated by the property damage event. Plaintiff implied that 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 roadway prior to plaintiffs property damage occurrence. Defendant located the damage-causing pothole between mileposts 149.70 and 152.30 on Interstate 77 in Cuyahoga County. Defendant asserted that plaintiff failed to produce any evidence showing how long the pothole existed prior to the incident forming the basis of this claim.
{¶ 4} 4) Defendant denied receiving any calls or complaints regarding the particular pothole before plaintiffs incident. Defendant explained that DOT employees conduct roadway inspections, “at least two times a month.” Apparently no potholes were
Page 2
discovered during previous roadway inspections from July through October 28, 2006. Defendant suggested that the pothole which plaintiffs car struck probably existed “for only a relatively short amount of time before plaintiffs incident.” Defendant denied any DOT employees were negligent in regard to roadway maintenance.
CONCLUSIONS OF LAW {¶ 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. 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.
{¶ 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. 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.
{¶ 7} Plaintiff has 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 that 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. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262. There is no indication 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
Page 3
existence. O’Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d 287. Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole.
Page 4
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.
Page 1