2008-Ohio-5920
No. 2008-04501-AD.Court of Claims of Ohio.
Filed August 14, 2008.
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MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On March 10, 2008, at approximately 1:40 p.m., plaintiff, Kristin Floyd, was traveling west on US Route 33 “4 miles outside of Nelsonville” in Athens County, when her automobile struck a pothole causing tire and rim damage to the vehicle.
{¶ 2} 2) Plaintiff asserted the damage to her car was proximately caused by negligence on the part of defendant, Department of Transportation(“DOT”), in failing to maintain the roadway free of defects. Plaintiff filed this complaint seeking to recover $645.10, the cost of automotive repair she incurred as a result of the March 10, 2008 property damage event. The filing fee was paid.
{¶ 3} 3) Defendant denied liability based on the contention that no DOT personnel had any knowledge of the pothole prior to plaintiff’s damage occurrence. Defendant denied receiving any prior complaints regarding the particular pothole which DOT located near milepost 6.00 on US Route 33 in Athens County. Defendant explained DOT Athens County Manager, Mike Biggs, “drove between mileposts 5.7 to 9.5 in both directions of US on April 22, 2008, and could not find evidence of a pothole or that one had been patched recently.” Defendant asserted plaintiff did not produce any evidence to establish the length of time the damage-causing pothole was present at milepost 6.00 on US Route 33 before 1:40 p.m. on March 10, 2008. Defendant suggested “it is more likely than not that the pothole existed in that location for only a relatively short amount of time before plaintiff’s incident.” Defendant pointed out the DOT “Athens County Manager conducts roadway inspections on all state roadways within the county on a routine basis, at least one to two times a month.” No pothole patching maintenance activity was required near milepost 6.00 on US Route 30 during the six-month period preceding March 10, 2008.
CONCLUSIONS OF LAW {¶ 4} Defendant has the duty to maintain its highways in a reasonably safe
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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.
{¶ 5} 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 pothole 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.
{¶ 6} To prove a breach of duty by defendant to maintain the highways plaintiff must establish, by a preponderance of the evidence, that DOT 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. No evidence has shown that defendant had actual notice of the damage-causing pothole.
{¶ 7} 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 (pothole) developed. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no evidence of constructive notice of the pothole.
{¶ 8} 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. 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.
Entry cc:
Kristin Floyd 408 Sandmar Drive Blacklick, Ohio 43004
James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223
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