YOUNG v. OHIO DEPARTMENT OF TRANSPORTATION, 2010-07997-AD (12-29-2010)


2010-Ohio-6688

Mary Lou Young, Plaintiff, v. Ohio Department of Transportation, Defendant.

No. 2010-07997-AD.Court of Claims of Ohio.
Filed December 29, 2010.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM DECISION {¶ 1} Plaintiff, Mary Lou Young, filed this action against defendant, Department of Transportation (ODOT), contending that the springs on her Saturn LW200 were damaged as a proximate cause of negligence on the part of ODOT in maintaining a hazardous condition on Interstate 675 in Greene County. In her complaint, plaintiff described her damage incident noting that, “[o]n May 25, 2010 at around 9:30 a.m. I took the exit from North Highway #675 to the Fairfield Rd.” and while traveling on the exit ramp the vehicle struck a pothole causing the damage claimed. Plaintiff seeks damage recovery in the amount of $494.34, the cost of replacement parts and repair expenses she incurred resulting from the May 25, 2010 incident. The filing fee was paid.

{¶ 2} Defendant denied liability based on the contention that no ODOT personnel had any knowledge of the particular pothole on the roadway prior to plaintiff’s property damage occurrence. Defendant advised that the pothole plaintiff’s vehicle struck was located “at county milepost 10.35 or state milepost 17.79 on I-675 in Greene County.” Defendant denied receiving any calls or complaints regarding a pothole at that location on Interstate 675 prior to plaintiff’s May 25, 2010 property damage event.

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Defendant suggested that, “it is likely the pothole existed for only a short time before the incident.” Furthermore, defendant asserted that plaintiff did not produce any evidence to prove her property damage was caused by negligent maintenance. Defendant explained that the ODOT “Greene County Manager inspects all state roadways within the county at least two times a month.” Apparently, no potholes were discovered at milepost 17.79 on Interstate 675 the last time that section of roadway was inspected prior to May 25, 2010. The claim file is devoid of any inspection record. Defendant submitted “Maintenance Records” show ODOT crews patched potholes in the vicinity of plaintiff’s incident on December 4, 2009, December 17, 2009, February 1, 2010, February 22, 2010, March 4, 2010, and May 13, 2010.

{¶ 3} For plaintiff to prevail on a claim of negligence, she must prove, by a preponderance of the evidence, that defendant owed her a duty, that it breached that duty, and that the breach proximately caused her injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573, ¶ 8 citin Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff has the burden of proving, by a preponderance of the evidence, that she suffered a loss and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio State University (1977), 76-0368-AD. However, “[i]t is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain such burden.” Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed.

{¶ 4} 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.

{¶ 5} 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

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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. There is no evidence that defendant had actual notice of the pothole. Therefore, for the court to find liability on a notice theory, evidence of constructive notice of the pothole must be presented.

{¶ 6} “[Constructive notice is that which the law regards as sufficient to give notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of Fahle (1950), 90 Ohio App. 195, 197-198, 48 O.O. 231, 105 N.E. 2d 429. “A finding of constructive notice is a determination the court must make on the facts of each case not simply by applying a pre-set time standard for the discovery of certain road hazards. Bussard, at 4. “Obviously, the requisite length of time sufficient to constitute constructive notice varies with each specific situation.”Danko v. Ohio Dept. of Transp. (Feb. 4, 1993), Franklin App. 92AP-1183. In order for there to be a finding of constructive notice, plaintiff must prove, by a preponderance of the evidence, that sufficient time has elapsed after the dangerous condition appears, so that under the circumstances defendant should have acquired knowledge of its existence. Guiher v. Dept. of Transportation (1978), 78-0126-AD; Gelarden v. Ohio Dept. of Transp., Dist. 4, Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.

{¶ 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 pothole appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. No evidence was presented to establish the length of time that the particular pothole was present. 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. Plaintiff has failed to prove that defendant had constructive notice of the pothole.

{¶ 8} Generally, 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 potholes 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

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(1976), 75-0287-AD. The fact that defendant’s “Maintenance History” reflects that pothole repairs were made in the vicinity of plaintiff’s incident on various occasions does not prove negligent maintenance of the roadway on the part of ODOT. 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 conditions. 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.

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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Entry cc:

Mary Lou Young 6733 Willow Creek Drive Huber Heights, Ohio 45424

Jolene M. Molitoris, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223

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