[Cite as Dombrosky v. Ohio Dept. of Transp., 2005-Ohio-6120.]
IN THE COURT OF CLAIMS OF OHIO
JEAN F. DOMBROSKY
:
Plaintiff
:
v.
:
CASE NO. 2005-07119-AD
:
MEMORANDUM DECISION
OHIO DEPARTMENT OF
TRANSPORTATION
:
Defendant
: : : : : : : : : : : : : : : : :
FINDINGS OF FACT
{¶ 1} 1) On February 15, 2005, at approximately 3:45 p.m., Lisa
Dombrosky was traveling on Interstate 90 near the Route 57 exit
(milepost 146) in Lorain County, when the automobile she was
driving struck a pothole causing rim and alignment damage to the
vehicle.
{¶ 2} 2) Plaintiff, Jean Dombrosky, Lisa Dombrosky’s mother,
paid for the repair costs to the automobile Lisa Dombrosky was
driving.
Plaintiff
filed
this
complaint
seeking
to
recover
$512.84, the cost of replacement parts and associated repair
expenses, plus a claim for filing fee reimbursement.
Plaintiff
contended her damages were proximately caused by negligence on the
part
of
defendant,
Department
of
Transportation
(“DOT”),
in
maintaining the roadway.
{¶ 3} 3) Defendant denied liability based on the assertion it
professed to have no knowledge of the damage-causing pothole prior
to the February 15, 2005, incident.
Defendant denied receiving any
complaints from any source about the pothole prior to February 15,
2005.
{¶ 4} 4) Plaintiff filed a response to the investigation report
on September 12, 2005, however, she did not submit any evidence to
establish the length of time the pothole existed prior to the
February 15, 2005, property damage event.
{¶ 5} 5) Evidence has shown defendant conducted frequent pothole
patching operations in the area of milepost 146 on Interstate 90 on
February 3, 2005, twelve days prior to the incident forming the
basis of this claim.
{¶ 6} 6) Plaintiff argued DOT personnel should have conducted
more frequent roadway inspections of Interstate 90 during the
winter season when potholes are more likely to form.
Plaintiff
suggested defendant does not make a written record of all calls and
complaints receiving regarding roadway defects.
Plaintiff did not
substantiate this suggested neglect on the part of DOT.
Plaintiff
stated she contacted the DOT garage in Oberlin, Ohio and was told
by
a
DOT
employee
that
not
all
phone
complaints,
complaints of potholes, are logged and recorded.
including
Plaintiff did not
submit evidence to show how long the pothole at milepost 146 on
Interstate 90 was present on the roadway before 3:45 p.m. on
February 15, 2005.
Plaintiff did not produce evidence to prove the
damage-causing pothole was a deteriorated repair which had been
previously patched.
CONCLUSIONS OF LAW
{¶ 7} 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.
{¶ 8} 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.
{¶ 9} 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.
No evidence has been
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
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.
There is no indication defendant had
constructive notice of the pothole.
Furthermore, plaintiff has not
provided 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.
{¶ 10}
4)
evidence,
that
Plaintiff has not shown, by a preponderance of the
defendant
failed
to
discharge
a
duty
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
defendant or its agents.
was
any
negligence
on
the
part
of
Taylor v. Transportation Dept. (1998),
97-10898-AD; Weininger v. Department of Transportation (1999), 9910909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-
04758-AD.
Consequently, plaintiff’s claim is denied.
IN THE COURT OF CLAIMS OF OHIO
JEAN F. DOMBROSKY
:
Plaintiff
:
v.
:
CASE NO. 2005-07119-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:
Jean F. Dombrosky
204 Kendal Court West
Amherst, Ohio 44001
Plaintiff, Pro se
Gordon Proctor, Director
Department of Transportation
1980 West Broad Street
Columbus, Ohio 43223
For Defendant
RDK/laa
9/21
Filed 10/27/05
Sent to S.C. reporter
11/17/05
