2009-Ohio-5750
No. 2009-02014-AD.Court of Claims of Ohio.
Filed June 30, 2009.
MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On January 18, 2009, at approximately 8:30 p.m., plaintiff, Jeffery L. Fox, was traveling north on Interstate 77 “entering the 480 west bound split” when his 2007 Honda Accord Ex V6 struck a large pothole causing tire and rim damage to the vehicle. Plaintiff related that the damage-causing pothole was located on the entrance ramp to Interstate 480 west “[a]bout 100 yards past the split in the left lane.”
{¶ 2} 2) Plaintiff implied that the damage to his car was proximately caused by negligence on the part of defendant, Department of Transportation (DOT), in failing to maintain the roadway free of defective conditions. Plaintiff filed this complaint seeking to recover damages in the amount of $282.99 for replacement parts and related expenses. The $25.00 filing fee was paid and plaintiff requested reimbursement of that cost along with his damage claim.
{¶ 3} 3) Defendant denied liability in this matter based on the contention that no DOT personnel had any knowledge of the pothole prior to plaintiffs property damage event. Defendant denied receiving any previous reports of the damage-causing pothole
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which DOT located at milepost 156.3 on Interstate 77 in Cuyahoga County. Defendant suggested that, “it is more likely than not that the pothole existed in that location for only a relatively short amount of time before plaintiffs incident.” Defendant asserted that plaintiff did not produce any evidence to establish the length of time the particular pothole existed at milepost 156.3 on Interstate 77 prior to 8:30 p.m. on January 18, 2009.
{¶ 4} 4) Furthermore, defendant asserted that plaintiff has not produced evidence to show DOT negligently maintained the roadway. Defendant explained that the DOT Cuyahoga 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 at milepost 156.3 on Interstate 77 the last time this roadway was inspected prior to January 18, 2009. Defendant records show that pothole patching operations were conducted in the vicinity of milepost 156.3 on Interstate 77 on December 30, 2008 and January 9, 2009. Defendant insisted that if any DOT personnel “had detected any defects they would have been promptly scheduled for repair.”
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, 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 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.
{¶ 7} 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.
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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.
{¶ 8} 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. 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. There is no evidence of constructive notice of the pothole.
{¶ 9} 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.
{¶ 10} Plaintiff has not shown, by a preponderance of the evidence, that defendant failed to discharge a duty owed to him or that his property damage was proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-causing pothole was connected to any conduct under the control of defendant or that there was any 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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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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