Gilliam v. Ohio Dept. of Transp.
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[Cite as Gilliam v. Ohio Dept. of Transp., 2007-Ohio-6960.] 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 JOANNE B. GILLIAM Case No. 2007-04974-AD Plaintiff Deputy Clerk Daniel R. Borchert v. MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION Defendant FINDINGS OF FACT {¶1} 1) On February 20, 2007, plaintiff, Joanne B. Gilliam, was traveling on State Route 125 (Beechmont Avenue) in Amelia, Ohio, when her automobile struck a pothole causing tire damage to the vehicle. {¶2} 2) Plaintiff filed this complaint seeking to recover $408.32 for replacement parts and automotive repair resulting from the February 20, 2007, property damage event. Plaintiff implied that the damage to her vehicle was proximately caused by negligence on the part of defendant, Department of Transportation ( DOT ), in maintaining the roadway. The filing fee was paid. {¶3} 3) Defendant denied liability based on the contention that no DOT personnel had any knowledge of the pothole on the roadway prior to plaintiff s property damage occurrence. Defendant located the damage-causing pothole, approximately at milepost 3.60 on SR 125 in Clermont County. Defendant submitted documents showing that DOT employees conducted pothole patching operations on State Route 125 from milepost 1.70 to 7.00. The pothole repairs in this area were done on February 20, 2007. Presumedly no employee associated with the DOT repair crew noticed a pothole at milepost 3.60 during these patching operations. Defendant asserted that Case No. 2007-04974-AD -2- MEMORANDUM DECISION plaintiff failed to produce any evidence showing how long the potholes existed prior to the incident forming the basis of this claim. {¶4} 4) Defendant denied receiving any calls or complaints regarding the particular pothole before plaintiff s incident. Defendant explained that DOT employees conduct roadway inspections, at least two times a month. Apparently no potholes were discovered during previous roadway inspections. Defendant suggested that the pothole likely, existed for only a short time before the incident, forming the basis of this claim. Defendant denied that DOT employees were negligent in regard to roadway maintenance. {¶5} 5) Plaintiff did not submit any evidence to establish the length of time the defect was on the roadway prior to her property damage incident. 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, 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. {¶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, 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. {¶8} Plaintiff has not produced sufficient evidence to indicate the length of time the particular pothole or potholes were present on the roadway prior to the incident forming the basis of this claim. Plaintiff has not shown defendant had actual notice of Case No. 2007-04974-AD -3- MEMORANDUM DECISION 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 sense, maintains its highways negligently or that defendant s acts caused the defective condition or conditions. 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. 2007-04974-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 JOANNE B. GILLIAM Plaintiff Case No. 2007-04974-AD Deputy Clerk Daniel R. Borchert v. OHIO 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: Joanne B. Gilliam 5390 Philloret Drive Cincinnati, Ohio 45239 James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 9/6 Filed 9/26/07 Sent to S.C. reporter 12/21/07
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