2009-Ohio-3021
No. 2008-10684-AD.Court of Claims of Ohio.
Filed March 23, 2009.
MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On October 9, 2008, at approximately 3:00 p.m., plaintiff, Greg Dore, was traveling west on Interstate 480 in Lorain County, when his 2006 BMW “struck a pothole on the right side of the right lane approximately 500 feet prior to the Ohio Turnpike tollbooth.” The pothole destroyed the right front tire of plaintiffs vehicle.
{¶ 2} 2) Plaintiff asserted that his property damage was proximately caused by negligence on the part of defendant, Department of Transportation (DOT), in failing to maintain the roadway. Consequently, plaintiff filed this complaint seeking to recover $276.90, the cost of a replacement tire. Plaintiff submitted the $25.00 filing fee.
{¶ 3} 3) Defendant denied liability based on the contention that no DOT personnel had any knowledge of the pothole prior to plaintiffs property damage occurrence. Defendant denied receiving any calls or complaints about the particular pothole which DOT located between milemarkers 1.00 and 0.68 on Interstate 480 in Lorain County. Defendant suggested that, “it is more likely than not that the pothole
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existed in that location for only a relatively short amount of time before plaintiffs incident.” Defendant contended that plaintiff did not produce any evidence to establish the length of time the pothole existed prior to October 9, 2008.
{¶ 4} 4) Defendant denied that the roadway was negligently maintained. Defendant explained that DOT Lorain County Manager, “conducts roadway inspections on all state roadways within the county on a routine basis, at least one to two times a month.” Apparently, no potholes were discovered between mileposts 1.00 and 0.68 on Interstate 480 the last time that section of roadway was inspected prior to October 9, 2008. Defendant’s records show that no pothole patching operations were conducted by DOT crews in the vicinity of plaintiffs incident in the five-month period preceding October 9, 2008.
{¶ 5} 5) Despite filing a response, plaintiff did not produce any evidence to establish the length of time that the damage-causing pothole on Interstate 480 existed on the roadway prior to 3:00 p.m. on October 9, 2008.
CONCLUSIONS OF LAW {¶ 6} Defendant has the duty to maintain its highways in a reasonable 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.
{¶ 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, 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.
{¶ 8} Plaintiff has not produced sufficient evidence to indicate the length of time that 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. Additionally, the trier of fact is precluded from making an inference of
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defendant’s constructive notice, unless evidence is presented in respect to the time that the pothole appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no indication that defendant had constructive notice of the pothole. 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. 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 287, 587 N.E. 2d 891. Therefore, defendant is not liable for any damage that 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.
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