2007-Ohio-7091
No. 2007-05261-AD.Court of Claims of Ohio.
October 10, 2007.
MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) Plaintiff, Benjamin E. Feldmann, stated he was traveling, “on the exit ramp of eastbound I-74 to southbound Central Parkway (U.S. 127) in Cincinnati,” when his automobile struck a pothole causing tire damage to the vehicle. Plaintiff recalled the property damage incident occurred on February 9, 2007, at approximately 6:40 a.m.
{¶ 2} 2) Plaintiff asserted the damage to his automobile was proximately caused by negligence on the part of defendant, Department of Transportation (“DOT”), in maintaining the roadway. Consequently, plaintiff filed this complaint seeking to recover $279.53, the cost of a replacement tire. The 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 at milepost 19.30 on Interstate 74 in Hamilton County. Defendant asserted 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 DOT employees
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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) Despite filing a response, plaintiff did not produce evidence to establish the length of time the pothole existed prior to 6:40 a.m. on February 9, 2007.
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, 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 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. 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, 577 N.E. 2d 458. There is no indication defendant had constructive notice of
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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 287, 587 N.E. 2d 891. Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole.
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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.
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