Daniel v. Ohio Dept. of Transp.
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[Cite as Daniel v. Ohio Dept. of Transp., 2007-Ohio-7192.] 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 JILL DANIEL Case No. 2007-05296-AD Plaintiff Deputy Clerk Daniel R. Borchert v. MEMORANDUM DECISION OHIO DEPT. OF TRANSPORTATION Defendant FINDINGS OF FACT {¶1} 1) On February 20, 2007, at approximately 6:30 p.m., plaintiff, Jill Daniel, was traveling on State Route 125 in Withiamsville, when her automobile hit a large pothole causing tire damage to the vehicle. {¶2} 2) Plaintiff filed this complaint seeking to recover $178.53, the total claimed cost of replacement parts and automotive repair resulting from the February 20, 2007, property damage event. Plaintiff implied that the damage to her van 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 1.96 on SR 125 in Clermont County. Defendant submitted documents showing that DOT employees conducted pothole patching operations on State Route 125 from mileposts 1.00 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 any potholes at milepost 1.96 during these patching operations. Defendant asserted that plaintiff failed to produce evidence showing how long the pothole existed prior to the incident forming the basis of this claim. Case No. 2007-05296-AD {¶4} 4) -2- MEMORANDUM DECISION 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 occurrence. 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 beach 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 conditions 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 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 Case No. 2007-05296-AD -3- MEMORANDUM DECISION 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. 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, 587 N.E. 2d 891. Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole. Case No. 2007-05296-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 JILL DANIEL Plaintiff Case No. 2007-05296-AD Deputy Clerk Daniel R. Borchert v. OHIO DEPT. 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: Jill Daniel 2800 Link Side Drive Apt. 1 Cincinnati, Ohio 45245 RDK/laa James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 10/10 Filed 11/1/07 Sent to S.C. reporter 1/7/08
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