[Cite as Zawadzki v. Ohio Dept. of Transp., 2007-Ohio-3753.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
NANCY ZAWADZKI
Case No. 2007-01916-AD
Plaintiff
Deputy Clerk Daniel R. Borchert
v.
MEMORANDUM DECISION
DEPARTMENT OF
TRANSPORTATION
Defendant
FINDINGS OF FACT
{¶ 1} 1)
On January 23, 2007, at approximately 8:45 a.m., plaintiff, Nancy
Zawadzki, was traveling east on Interstate 480, “at the point where Interstate 71 N veers to
the right towards 480 East,” when her automobile struck a pothole in the roadway. The
pothole caused tire and rim damage to the vehicle.
{¶ 2} 2)
Plaintiff alleged the property damage she sustained was proximately
caused by negligence on the part of defendant, Department of Transportation (“DOT”), in
maintaining a hazardous condition on the roadway. Consequently, plaintiff filed this
complaint seeking to recover $379.05 for replacement parts, automotive repair costs, and
work loss resulting from the January 23, 2007, incident.
Plaintiff also requested
reimbursement of the 25.00 filing fee. The filing fee was paid.
{¶ 3} 3)
Defendant denied any liability in this matter asserting plaintiff failed to
produce evidence establishing her property damage was related to any negligent act or
omission on the part of DOT. Defendant explained plaintiff noted her automobile struck a
pothole on Interstate 280 on January 23, 2007. Defendant recorded the indicated pothole
location would be at state milepost 10.90 on I-480 in Cuyahoga County. Defendant related
no calls or complaints were receive about a pothole at this location prior to January 23,
2007. Defendant denied having any knowledge of the pothole before plaintiff’s damage
Case No. 2007-01916-AD
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MEMORANDUM DECISION
occurrence. Defendant observed DOT employees conduct roadway inspections, “at least
two times a month.” Apparently no potholes were discovered during previous roadway
inspections.
{¶ 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)
Defendant suggested the pothole plaintiff’s vehicle struck, “likely
existed for only a short time before the incident.” Defendant submitted records showing
DOT previously repaired potholes in the vicinity of plaintiff’s damage occurrence on
November 8, November 22, December 12, 2006, January 8, January 11, and January 18,
2007.
CONCLUSIONS OF LAW
{¶ 6} 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.
{¶ 7} 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. McClellan v.
ODOT (1986), 34 Ohio App. 3d 247. 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 sufficient evidence to indicate the length of time the
particular 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 for a sufficient
length of time to invoke liability. Additionally, the trier of fact is precluded from making an
Case No. 2007-01916-AD
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MEMORANDUM DECISION
inference of defendant’s constructive notice, unless evidence is presented in respect to the
time the pothole appeared on the roadway. Spires v. Ohio Highway Department (1988), 61
Ohio Misc. 2d 262. 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 v.
Ohio Department of Transportation (1999), 99-07011-AD. 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 287. Therefore, defendant is not liable for any damage plaintiff
may have suffered from the pothole.
[Cite as Zawadzki v. Ohio Dept. of Transp., 2007-Ohio-3753.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
NANCY ZAWADZKI
Plaintiff
Case No. 2007-01916-AD
Deputy Clerk Daniel R. Borchert
v.
DEPARTMENT OF
TRANSPORTATION
ENTRY OF ADMINISTRATIVE
DETERMINATION
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. Court costs are assessed against plaintiff. 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:
Nancy Zawadzki
18910 Mallard Cove
Middleburg Hts., Ohio 44130
RDK/laa
5/16
Filed 6/4/07
Sent to S.C. reporter 7/24/07
James Beasley, Director
Department of Transportation
1980 West Broad Street
Columbus, Ohio 44223
