Neal v. Ohio Dept. of Transp.
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[Cite as Neal v. Ohio Dept. of Transp., 2005-Ohio-6805.] IN THE COURT OF CLAIMS OF OHIO TAMMY NEAL : Plaintiff : v. : CASE NO. 2005-08026-AD : MEMORANDUM DECISION DEPARTMENT OF TRANSPORTATION Defendant : : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On April 30, 2005, at approximately 11:00 p.m., plaintiff, Tammy Neal, was traveling east on State Route 162 towards New London, Ohio, right before the Alliance Church, when her automobile struck a pothole in the traveled portion of the roadway. The pothole caused substantial damage to plaintiff s vehicle. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $500.00, her insurance coverage deductible1 for automotive repair which she contends she incurred as a result of negligence on the part of defendant, Department maintaining the roadway. {¶ 3} 3) Defendant of Transportation ( DOT ), in The $25.00 filing fee was paid. denied liability based on the fact if 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 21 on SR-162 in Huron County. {¶ 4} 4) 1 Plaintiff did not submit any evidence to establish the R.C. 2743.02(D) limits any recovery for property damage plaintiff may receive to her insurance coverage deductible. length of time the pothole existed prior to the April 30, 2005, property damage event. {¶ 5} 5) Defendant provided records showing pothole patching operations were previously conducted in the vicinity of plaintiff s incident on November 26, 2004, December 10, 2004, January 7, 2005, February 4, 2005, February 8, 2005, February 22, 2005, March 18, 2005, March 21, 2005, and April 7, 2005. {¶ 6} 6) 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 evidence to prove DOT breached any duty of care owed to the traveling public in respect to roadway maintenance. 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) There is no evidence defendant had actual notice of the damage-causing pothole. {¶ 10} 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. {¶ 11} 5) 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. v. Ohio Department of Transportation (1999), Herlihy 99-07011-AD. Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole. {¶ 12} 6) 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 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 TAMMY NEAL : Plaintiff : v. : CASE NO. 2005-08026-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: Tammy Neal 33 E. Washburn Street New London, Ohio 44851 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 11/22 Filed 12/1/05 Sent to S.C. reporter 12/22/05
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