Burns v. Ohio Dept. of Transp.
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[Cite as Burns v. Ohio Dept. of Transp., 2005-Ohio-3527.] IN THE COURT OF CLAIMS OF OHIO MELINDA BURNS : Plaintiff : v. : CASE NO. 2005-03415-AD : MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On January 6, 2005, plaintiff, Melinda Burns, was traveling on the Interstate 74 W exit ramp from Interstate 275 N in Hamilton County, when her van struck a series of potholes causing tire and rim damage to the vehicle. Plaintiff also stated in her response to defendant s investigation report that the damage-causing potholes were located on 275 N taking Exit 25 to 74 West. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $334.85, the cost of automotive repair which plaintiff contends she incurred as a result of negligence on the part of defendant, Department of Transportation, in maintaining the roadway. The $25.00 filing fee was paid. {¶ 3} 3) Defendant has denied liability based on the fact it had no knowledge of the pothole prior to plaintiff s property damage occurrence. {¶ 4} 4) Plaintiff has not submitted any evidence to indicate the length of time the pothole existed prior to the incident forming the basis of this claim.1 {¶ 5} 5) Defendant has asserted maintenance records show no pothole patching operations were needed in the general vicinity of plaintiff s incident during the six-month period preceding the January 6, 2005, property damage event. CONCLUSIONS OF LAW {¶ 6} 1) 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. {¶ 7} 2) In order to recover in any suit involving injury proximately caused by roadway conditions plaintiff must prove 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. {¶ 8} 3) 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. {¶ 9} 4) notice or Size of the defect (pothole) is insufficient to show duration of existence. O Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d 297. {¶ 10} 5)Plaintiff has not produced any evidence to indicate the length of time the pothole was present on the roadway prior to the incident forming the basis of this claim. 1 No evidence has been Plaintiff filed a response noting she was required to pay postage costs to receive the investigation report for this claim. submitted to show 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. 262. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 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. 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. IN THE COURT OF CLAIMS OF OHIO MELINDA BURNS : Plaintiff : v. : CASE NO. 2005-03415-AD : ENTRY OF ADMINISTRATIVE DETERMINATION OHIO DEPARTMENT OF TRANSPORTATION : 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. Court costs are assessed against plaintiff, reduced by the $4.88 she paid for postage to receive the investigation report. 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: Melinda Burns 2307 Grace Avenue Ft. Mitchell, Kentucky Plaintiff, Pro se 41017 Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 DRB/RDK/laa 5/19 Filed 6/17/05 Sent to S.C. reporter 7/8/05 For Defendant
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