Hibbler v. Ohio Dept. of Transp.

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[Cite as Hibbler v. Ohio Dept. of Transp., 2005-Ohio-2032.] IN THE COURT OF CLAIMS OF OHIO CATHWARD HIBBLER : Plaintiff : v. : : OHIO DEPARTMENT OF TRANSPORTATION CASE NO. 2004-09487-AD MEMORANDUM DECISION : Defendant ::::::::::::::::: FINDINGS OF FACT {¶1} On October 16, 2003, at approximately 11:00 a.m., plaintiff, Cathward Hibbler, was traveling north on Interstate 280, after Front St in Toledo, Ohio, when her automobile struck a roadway defect causing tire and rim damage to the vehicle. Plaintiff described the damage-causing defect as a big uneven bump spanning the width of the roadway. The roadway defect was located within a construction zone. {¶2} Consequently, plaintiff filed this complaint seeking to recover $1,169.91, the cost of automotive repair resulting from the October 16, 2003 incident. Plaintiff paid the filing fee. Plaintiff has asserted she incurred these damages as a proximate cause of negligence on the part of defendant, Department of Transportation (DOT), in maintaining the roadway in a construction zone on Interstate 280 in Lucas County. {¶3} Defendant explained the area where plaintiff s damage occurred was located within a construction area under the control of DOT contractor, Fru-Con Construction Corporation ( Fru-Con ). Additionally, defendant denied liability in this matter based on Case No. 2004-09487-AD -2- MEMORANDUM DECISION the allegation that neither DOT nor Fru-Con had any knowledge of the defect plaintiff s vehicle struck. {¶4} Plaintiff did not submit any evidence to establish the length of time the defective condition was on the roadway prior to her property damage incident. {¶5} Defendant asserted Fru-Con, by contractual agreement, was responsible for maintaining the roadway within the construction area. Therefore, DOT argued Fru-Con is the proper party defendant in this action. Defendant implied all duties, such as the duty to inspect, the duty to warn, the duty to maintain, and the duty to repair defects, were delegated when an independent contractor takes control over a particular section of roadway. {¶6} Furthermore, defendant again denied having any notice of the damage-causing defect. Defendant contended plaintiff failed to introduce evidence proving any requisite notice. CONCLUSIONS OF LAW {¶7} The duty of DOT to maintain the roadway in a safe drivable condition is not delegable to an independent contractor involved in roadway construction. DOT may bear liability for the negligent acts of an independent contractor charged with roadway construction. See Cowell v. Ohio Department of Transportation, 200309343-AD, jud, 2004-Ohio-151. {¶8} Defendant has the duty to maintain its highway 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. {¶9} In order to recover in any suit involving injury proximately caused by roadway Case No. 2004-09487-AD -3- MEMORANDUM DECISION conditions plaintiff must prove either: 1) defendant had actual or constructive notice of the defective condition 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. Defendant is only liable for roadway conditions of which it has notice, but {¶10} fails to reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1. {¶11} Plaintiff has not produced any evidence to indicate the length of time the defect was present on the roadway prior to the incident forming the basis of this claim. No evidence has been submitted to show defendant had actual notice of the defective condition. 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 defect appeared on the roadway. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. There is no indication defendant had constructive notice of the defect. 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. Therefore, defendant is not liable for any damage plaintiff may have suffered from the defective condition. {¶12} Plaintiff has not shown, by a preponderance of the evidence, that defendant failed to discharge a duty owed to plaintiff, or that plaintiff s injury was proximately caused by defendant s negligence. Plaintiff failed to show that the damagecausing defect was connected to any conduct under the control of defendant, that defendant was negligent in maintaining the construction area, or that there was any negligence on the part of defendant or its agents. Taylor v. Transportation Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 9910909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000- Case No. 2004-09487-AD -4- 04758-AD. Consequently, plaintiff s claim is denied. MEMORANDUM DECISION [Cite as Hibbler v. Ohio Dept. of Transp., 2005-Ohio-2032.] IN THE COURT OF CLAIMS OF OHIO CATHWARD HIBBLER Plaintiff : : v. : : OHIO DEPARTMENT OF TRANSPORTATION CASE NO. 2004-09487-AD ENTRY OF ADMINISTRATIVE DETERMINATION : Defendant ::::::::::::::::: 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. are assessed against plaintiff. Court costs The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal. ________________________________ DANIEL R. BORCHERT Deputy Clerk Entry cc: Cathward Hibbler 2514 Scottwood Street Toledo, Ohio 43610 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 3/23 Filed 4/5/05 Sent to S.C. reporter 4/29/05

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