2011-Ohio-5535
No. 2011-03693-AD.Court of Claims of Ohio.
Filed July 19, 2011.
MEMORANDUM DECISION {¶ 1} Plaintiff, Denise Davis filed this action against defendant, Ohio Department of Transportation (ODOT), contending that her vehicle was damaged as a proximate result of negligence on the part of ODOT in maintaining a hazardous condition on State Route 22. In her complaint, plaintiff described the particular damage event noting that she “[h]it a large pothole on 7679 Montgomery Road had to replace the damaged tire the other three due to AWD of my vehicle. I called and was told that the hole had been reported on 3/1/2011.” Plaintiff seeks recovery of damages in the amount of $1,197.84, the stated total amount for four replacement tires. The filing fee was paid.
{¶ 2} Defendant denied liability based on the contention that no ODOT personnel had any knowledge of the particular damage-causing pothole prior to plaintiffs incident. Defendant related that plaintiffs incident occurred between mileposts 10.66 and 10.72 on US 22 in Hamilton County. Defendant denied receiving any prior calls or complaints about a pothole or potholes in the vicinity of that location. Defendant
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asserted that plaintiff did not offer any evidence to establish the length of time the pothole existed on US 22 prior to her incident.
{¶ 3} Additionally, defendant contended that plaintiff did not offer any evidence to prove that the roadway was negligently maintained. Defendant advised that the ODOT “Hamilton County Manager inspects all state roadways within the county at least two times a month.” Apparently, no potholes were discovered in the vicinity of plaintiffs incident the last time that section of roadway was inspected prior to March 2, 2011. The claim file is devoid of any inspection record. Defendant argued that plaintiff has failed to offer any evidence to prove her property damage was attributable to any conduct on the part of ODOT personnel. Defendant stated that, “[a] review of the six-month maintenance history [record submitted] also reveals that general maintenance and inspection is conducted to ensure a properly maintained roadway.” Plaintiff did not file a response.
{¶ 4} For plaintiff to prevail on a claim of negligence, she must prove, by a preponderance of the evidence, that defendant owed her a duty, that it breached that duty, and that the breach proximately caused her 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 i Steven v. Indus. Comm. (1945), 145 Ohio St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed.
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{¶ 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 conditions or defects 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 insufficient evidence that defendant had actual notice of the pothole on US 22 prior to March 2, 2011.
{¶ 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,
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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. 92AP-1183. Insufficient evidence has been submitted to show 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 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. 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 conditions. 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 known hazardous roadway conditions. Plaintiff failed to prove that her 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.
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Consequently, plaintiff’s claim is denied.
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ENTRY OF ADMINISTRATIVE DETERMINATION {¶ 11} 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.
Entry cc:
Denise Davis
3460 Davis Lane Cincinnati, Ohio 45237
Jerry Wray, Director Department of Transportation
1980 West Broad Street Columbus, Ohio 43223
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