Miller v. Ohio Dept. of Transp.

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[Cite as Miller v. Ohio Dept. of Transp., 2005-Ohio-4325.] IN THE COURT OF CLAIMS OF OHIO REBECCA H. MILLER : Plaintiff : v. : CASE NO. 2005-05965-AD : MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On March 4, 2005, at approximately 8:15 a.m., plaintiff, Rebecca H. Miller, was traveling, on I-76/224 eastbound at the SR 57 eastbound onramp, [sic] when her automobile struck a series of potholes causing tire damage to the vehicle. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $256.03, for replacement tires, a cost plaintiff contends she incurred as a result of 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 fact it professed to have no knowledge of the damage-causing potholes prior to plaintiff s incident. Defendant suggested the potholes plaintiff s vehicle struck probably existed for only a relatively short amount of time before plaintiff s incident. Defendant denied receiving any prior complaints about the potholes which DOT located at milepost 3.24 on SR 57 in Medina County. {¶ 4} 4) Plaintiff did not submit any evidence to establish the length of time the potholes existed prior to the March 4, 2005, property damage event. Plaintiff explained DOT placed a Rough Road sign, less than 1/4 mile east of where I had the tire blowouts. Plaintiff professed this advisory sign and other signs had been posted since late winter and were in place long before my incident occurred. Plaintiff seemingly contended the posted signs should serve as evidence that DOT had knowledge of the damage-causing potholes in the roadway.1 {¶ 5} 5) Furthermore, defendant asserted 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 argued, 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 must exercise due care and diligence in the proper maintenance and repair of highways. Ohio Highway Department (1985), 85-02071-AD. Hennessey v. State of Breach of this duty, however, does not necessarily result in liability. Defendant is only liable when plaintiff proves, by a preponderance of the evidence, that defendant s negligence is the proximate cause of plaintiff s damages. Strother v. Hutchinson (1981), 67 Ohio St. 2d 282, 285. {¶ 7} 2) 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. {¶ 8} 3) In order to prove a breach of duty to maintain the 1 Plaintiff filed a response. 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. The trier Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1. 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 developed. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. {¶ 9} 4) In order for there to be constructive notice, plaintiff must show sufficient time has elapsed after the dangerous condition appears, so that under the circumstances, defendant should have acquired knowledge of its existence. 0126-AD. Guiher v. Jackson (1978), 78- Size of the defect is insufficient to show notice or duration of existence. O Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d 297. 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, supra 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. No. 92AP-1183. {¶ 10} 5) Plaintiff has not produced any evidence to indicate the length of time the potholes were present on the roadway prior to the incident forming the basis of this claim. No evidence has been notice submitted to show defendant had actual of the potholes.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 potholes appeared on the roadway. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. There is no indication defendant had constructive notice of the potholes. 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 conditions. v. Ohio Department of Transportation (1999), Herlihy 99-07011-AD. Therefore, defendant is not liable for any damage plaintiff may have suffered from potholes. IN THE COURT OF CLAIMS OF OHIO REBECCA H. MILLER : Plaintiff : v. : CASE NO. 2005-05965-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: Rebecca H. Miller 8681 Markley Drive Plaintiff, Pro se Wadsworth, Ohio 44281 Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 DRB/RDK/laa 7/18 Filed 8/5/05 Sent to S.C. reporter 8/19/05 For Defendant

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