2007-Ohio-3103
2007-02475-AD.Court of Claims of Ohio.
May 24, 2007.
Lola M. Ware, Amelia, Ohio.
James Beasley, Director, Department of Transportation, Columbus, Ohio.
MEMORANDUM DECISION
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FINDINGS OF FACT {¶ 1} 1) On February 20, 2007, at approximately 7:00 p.m., plaintiff, Lola M. Ware, was traveling east on State Route 125, “going towards Amelia in front of Count our Blessings,” building, when her automobile struck a large pothole causing tire and wheel damage to the vehicle.
{¶ 2} 2) Plaintiff filed this complaint seeking to recover $225.48, for replacement parts and automotive repair resulting from the February 20, 2007, property damage event. Plaintiff implied the damage to her car was proximately caused by negligence on the part of defendant, Department of Transportation (“DOT”), in maintaining the roadway. The filing fee was paid.
{¶ 3} 3) Defendant denied liability based on the contention no DOT personnel had any knowledge of the pothole on the roadway prior to plaintiffs damage occurrence. Defendant located the damage-causing pothole, “between milepost 1.96 and milepost 2.13 on SR 125 in Clermont 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. Defendant suggested, “it is likely the pothole existed for only a short time before the incident.”
{¶ 4} 4) Defendant denied receiving any calls or complaints regarding the particular pothole before plaintiffs incident. Defendant explained DOT employees conduct roadway inspections, “at least two times a month.” Apparently no potholes were discovered during previous roadway inspections. Defendant denied DOT employees were negligent in regard to roadway maintenance. Defendant’s records show pothole patching operations were conducted on State Route 125 on February 20, 2007, between mileposts 1.00 and 7.00. Presumedly the pothole plaintiffs vehicle struck was not discovered.
{¶ 5} 5) Despite filing a response, plaintiff has not submitted evidence to establish the length of time the pothole existed prior to her property damage event.
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. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723.
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{¶ 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. 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.
{¶ 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. 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. 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. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
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