Rosner v. Ohio Dept. of Transp.
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[Cite as Rosner v. Ohio Dept. of Transp., 2005-Ohio-3533.] IN THE COURT OF CLAIMS OF OHIO WILLIAM R. ROSNER : Plaintiff : v. : CASE NO. 2005-04012-AD : MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On January 2, 2005, at approximately 9:00 p.m., plaintiff, William R. Rosner, was traveling on Interstate 480, just west of Ridge Road, in Cuyahoga County, when his automobile struck a water filled pothole in the traveled portion of the roadway. The impact of striking the pothole caused tire and rim damage to plaintiff s vehicle. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $208.93, his total cost of automotive repair which plaintiff contends he incurred as a result of negligence on the part of defendant, Department of Transportation ( DOT ), in maintaining the roadway. The $25.00 filing fee was paid. {¶ 3} 3) Defendant denied liability based on the fact it professed to have no knowledge of the damage-causing pothole prior to plaintiff s incident. Defendant denied receiving any prior complaints about the pothole which DOT located at milepost 13.00 on I-480 in Cuyahoga County. {¶ 4} 4) Plaintiff did not submit any evidence to establish the length of time the pothole existed prior to the January 2, 2005, property damage event. {¶ 5} 5) Furthermore, defendant explained DOT employees conduct roadway inspections on a routine basis and had any of these employees detected a roadway defect that defect would have promptly been repaired. Defendant contended, plaintiff did not produce sufficient evidence to prove DOT breached any duty of care owed to the traveling public in respect to roadway maintenance. 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 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. v. ODOT (1986), 34 Ohio App. 3d 247. McClellan 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} 3) There is no evidence defendant had actual notice of the damage-causing pothole. {¶ 9} 4) 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 defective condition (pothole) developed. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. {¶ 10} 5) 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 297. {¶ 11} 6) In order for there to be constructive notice, plaintiff must show sufficient time has elapsed after the dangerous condition (pothole) appears, so that under the circumstances, defendant should have acquired knowledge of the existence of the defects. {¶ 12} Guiher v. Jackson (1978), 78-0126-AD. 7) No evidence has shown defendant had constructive notice of the pothole. {¶ 13} 8) Furthermore, plaintiff has failed to show defendant negligently maintained the roadway. IN THE COURT OF CLAIMS OF OHIO WILLIAM R. ROSNER : Plaintiff : v. : CASE NO. 2005-04012-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. 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: William R. Rosner Plaintiff, Pro se 18501 Shaker Blvd. Shaker Hts., Ohio 44122 Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 6/2 Filed 6/17/05 Sent to S.C. reporter 7/8/05 For Defendant
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