Windholtz v. Dept. of Transp.
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[Cite as Windholtz v. Dept. of Transp., 2007-Ohio-6393.] 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 MARK WINDHOLTZ Case No. 2007-04907-AD Plaintiff Deputy Clerk Daniel R. Borchert v. MEMORANDUM DECISION DEPARTMENT OF TRANSPORTATION Defendant FINDINGS OF FACT {¶1} 1) On March 29, 2007, at approximately 9:00 p.m., plaintiff, Mark Windholtz, was traveling west on Interstate 74, at the Harrison Ave/Rybolt Rd entrance ramp, in Cincinnati, when his automobile struck a large pothole causing tire and wheel damage to the vehicle. Plaintiff submitted photographs of the damage-causing pothole which depict a massive pavement defect in the middle of the traveled portion of the roadway. {¶2} 2) Plaintiff asserted the damage to his automobile was proximately caused by negligence on the part of defendant, Department of Transportation ( DOT ), in failing to maintain the roadway. Consequently, plaintiff filed this complaint seeking to recover $587.67, the cost of replacement parts and associated repair expenses for his vehicle. The filing fee was paid. {¶3} 3) Defendant denied liability based on the contention that no DOT personnel had any knowledge of the large pothole on the roadway prior to plaintiff s property damage occurrence. Defendant denied receiving any previous complaints about the particular damage-causing pothole, which DOT located at milepost 11.02 on Interstate 74 in Hamilton County. Defendant asserted plaintiff failed to produce any Case No. 2007-04907-AD -2- MEMORANDUM DECISION evidence showing how long the pothole existed prior to the March 29, 2007, incident. Defendant suggested, it is likely the pothole existed for only a short time before the incident. Defendant explained the DOT Hamilton County Manager inspects all the state roadways within Hamilton County, at least two times a month. Apparently no potholes were observed at milepost 11.02 on Interstate 74 the last time an inspection was conducted before March 29, 2007. CONCLUSIONS OF LAW {¶4} 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, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723, 588 N.E. 2d 864. {¶5} 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, 517 N.E. 2d 1388. Defendant is only liable for roadway condition of which it has notice but fails to reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR 64, 507 N.E. 2d 1179. {¶6} 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. 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. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no indication defendant had constructive notice of the pothole. Plaintiff has not produced any evidence to infer defendant, in a general Case No. 2007-04907-AD -3- MEMORANDUM DECISION 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, 578 N.E. 2d 891. Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole. Case No. 2007-04907-AD -4- MEMORANDUM DECISION 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 MARK WINDHOLTZ Plaintiff Case No. 2007-04907-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. ________________________________ DANIEL R. BORCHERT Deputy Clerk Entry cc: Mark Windholtz 1711 Ridgewood Circle Lawrenceburg, Indiana 47025 RDK/laa James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 8/17 Filed 9/6/07 Sent to S.C. Reporter 11/29/07
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