HASTINGS v. OHIO DEPT. OF TRANSPORTATION, 2008-05842-AD (9-26-2008)

2008-Ohio-6460

No. 2008-05842-AD.Court of Claims of Ohio.
Filed September 26, 2008.

MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On February 28, 2008, at approximately 9:20 p.m., plaintiff, Susan M. Hastings, was traveling east on State Route 344 “around Old Route 558” in Columbiana County, when her automobile struck a pothole causing tire and rim damage to the vehicle.

{¶ 2} 2) Plaintiff implied her property damage was proximately caused by negligence on the part of defendant, Department of Transportation (“DOT”), in failing to maintain the roadway. Plaintiff filed this complaint seeking to recover $262.35, the total cost of automotive repair incurred resulting from the February 28, 2008 incident. The $25.00 filing fee was paid.

{¶ 3} 3) Defendant denied liability based on the contention that no DOT personnel had any knowledge of the damage-causing pothole prior to plaintiffs property damage occurrence. Defendant denied receiving any previous calls or complaints regarding the particular pothole, which DOT located near milepost 3.07 on State Route 344 in Columbiana County. Defendant asserted plaintiff did not produce any evidence

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to establish the length of time the pothole was present on the roadway before 9:20 p.m. on February 28, 2008. Defendant suggested “it is likely the pothole existed for only a short time before the incident.”

{¶ 4} 4) Defendant contended plaintiff failed to prove her damage was proximately caused by negligent maintenance on the part of DOT. Defendant explained the DOT “Columbiana County Manager inspects all state roadways within the county on a routine basis, at least two times a month.” Apparently no potholes were discovered near milepost 3.07 on State Route 344 the last time that specific section of roadway was inspected prior to February 28, 2008. DOT records show pothole repairs were conducted in the vicinity of plaintiffs damage occurrence on January 18, 2008.

{¶ 5} 5) Despite filing a response, plaintiff did not produce evidence to establish the length of time the pothole existed prior to 9:20 p.m. on February 28, 2008. Plaintiff pointed out the damage-causing pothole was quite large and speculated the defect had probably existed on the roadway for some time prior to February 28, 2008.

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 condition 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 defendant had actual notice of the pothole. Additionally, the trier of fact is precluded from making an inference of defendant’s

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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 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. 578 N.E. 2d 891. Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole.

ENTRY OF ADMINISTRATIVE DETERMINATION

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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:

Susan M. Hastings

6838 Twin Oaks Court

Canfield, Ohio 44406

James G. Beasley, Director

Department of Transportation

1980 West Broad Street

Columbus, Ohio 43223

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