Demyan v. Ohio Dept. of Transp.
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[Cite as Demyan v. Ohio Dept. of Transp., 2005-Ohio-5394.] IN THE COURT OF CLAIMS OF OHIO STACY LYNN DEMYAN : Plaintiff : v. : CASE NO. 2005-06961-AD : MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} On February 1, 2005, at approximately 8:30 a.m., plaintiff, Stacy L. Demyan, was traveling east on State Route 303, toward Valley City from Elyria, when her automobile struck a pothole causing tire and wheel damage to the vehicle. {¶ 2} Plaintiff filed this complaint seeking to recover $305.27, 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 and plaintiff included that amount in her damage claim. {¶ 3} Defendant denied liability based on the fact it professed to have no knowledge plaintiff s incident. of the damage-causing pothole prior to Defendant suggested the pothole plaintiff s car struck probably existed for only a short time before the incident. Defendant denied any prior complaints about the pothole which DOT located at milepost 16.63 in Lorain County. {¶ 4} Plaintiff did not submit any evidence to establish the length of time the pothole existed prior to the February 1, 2005, property damage event. {¶ 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} 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. {¶ 7} 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. {¶ 8} 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. {¶ 9} 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 STACY LYNN DEMYAN : Plaintiff : v. : CASE NO. 2005-06961-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: Stacy Lynn Demyan 322 Longford Avenue Elyria, Ohio 44035 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 9/8 Filed 9/21/05 Sent to S.C. reporter 10/11/05
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