Schaber v. Ohio Dept. of Transp.
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[Cite as Schaber v. Ohio Dept. of Transp., 2005-Ohio-6277.] IN THE COURT OF CLAIMS OF OHIO THERESE SCHABER : Plaintiff : v. : CASE NO. 2005-06368-AD : MEMORANDUM DECISION DEPARTMENT OF TRANSPORTATION Defendant : : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On April 25, 2005, at approximately 10:45 p.m., plaintiff, Therese Schaber, was traveling south onto Interstate 71 at W. 150th Street in Cleveland when her automobile struck a pothole on the Interstate 71 entrance ramp. The pothole caused tire damage to plaintiff s vehicle. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $151.86, her total cost of automotive repair which plaintiff contends she 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 240.5 on I-71 in Cuyahoga County. {¶ 4} 4) Despite filing a response, 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. {¶ 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 {¶ 1} 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. {¶ 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. Transportation (1976), 75-0287-AD. Denis v. Department of 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. {¶ 3} 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. Plaintiff has not shown 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. Department (1988), 61 Ohio Misc. 2d 262. Spires v. Highway 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 or that defendant s acts caused the defective condition. Herlihy Transportation (1999), 99-07011-AD. v. Ohio Department of Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole. {¶ 4} Plaintiff evidence, that has not defendant shown, failed to by a preponderance discharge a duty of the owed to plaintiff, or that plaintiff s injury was proximately caused by defendant s negligence. Plaintiff failed to show that the damage- causing pothole was connected to any conduct under the control of defendant 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), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. IN THE COURT OF CLAIMS OF OHIO THERESE SCHABER : Plaintiff : v. : CASE NO. 2005-06368-AD : ENTRY OF ADMINISTRATIVE DETERMINATION 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: Therese Schaber 417 Birchwood Avenue Akron, Ohio 44310 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 10/21 Filed 11/10/05 Sent to S.C. reporter 11/22/05
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