Cipro v. Ohio Dept. of Transp.

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[Cite as Cipro v. Ohio Dept. of Transp., 2008-Ohio-3940.] 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 ROMUALDO CIPRO, JR. Case No. 2008-02011-AD Plaintiff Deputy Clerk Daniel R. Borchert v. MEMORANDUM DECISION OHIO DEPT. OF TRANSPORTATION Defendant FINDINGS OF FACT {¶ 1} 1) On January 22, 2008, at approximately 3:40 p.m., plaintiff, Romualdo Cipro, Jr., was traveling south on Interstate 77 between milemarkers 156 and 155 in Cuyahoga County, when his automobile struck a pothole causing substantial damage to the vehicle. {¶ 2} 2) Plaintiff implied the damage to his car, a 2001 Dodge Stratus, 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 $957.14, the total expense he incurred for automotive repair. Plaintiff paid the $25.00 filing fee and requested reimbursement of that amount along with his damage claim. {¶ 3} 3) Defendant denied liability in this matter based on the contention that no DOT personnel had any knowledge of the pothole prior to plaintiff s property damage event. Defendant denies receiving any previous reports of the damage-causing pothole which DOT located between milepost 155 and 156 on Interstate 77 in Cuyahoga County. Defendant suggested, it is more likely than not that the pothole existed in that location for only a relatively short amount of time before plaintiff s incident. {¶ 4} 4) Furthermore, defendant asserted plaintiff has not produced evidence to show DOT negligently maintained the roadway. Defendant explained that the DOT Case No. 2008-02011-AD -2- MEMORANDUM DECISION Cuyahoga County Manager conducts roadway inspections on all state roadways within the county on a routine basis, at least one to two times a month. Apparently no potholes were discovered between mileposts 156 and 155 on Interstate 77 the last time this roadway was inspected prior to January 22, 2008. Defendant s records show pothole patching operations were conducted in the particular vicinity on Interstate 77 on December 19, 2007, December 31, 2007, and January 14, 2008. CONCLUSIONS OF LAW {¶ 5} 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. {¶ 6} In order to recover in a suit involving damage proximately caused by roadway conditions including potholes, plaintiff must prove that either: 1) defendant had actual or constructive notice of the pothole and failed to respond in a reasonable time or responded in a negligent manner, or 2) that defendant, in a general sense, maintains its highways negligently. Denis v. Department of Transportation (1976), 75-0287-AD. {¶ 7} To prove a breach of duty by defendant to maintain the highways plaintiff must establish, by a preponderance of the evidence, that DOT 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. No evidence has shown that defendant had actual notice of the damage-causing pothole. {¶ 8} The trier of fact is precluded from making an inference of defendant s constructive notice, unless evidence is presented in respect to the time that the Case No. 2008-02011-AD -3- MEMORANDUM DECISION defective condition (pothole) developed. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. 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. There is no evidence of constructive notice of the pothole. {¶ 9} Plaintiff has not produced any evidence to infer that 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. Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole. {¶ 10} Plaintiff has not shown, by a preponderance of the evidence, that defendant failed to discharge a duty owed to him or that his property 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. Taylor v. Transportation Dept. (1998), 9710898-AD; Weininger v. Department of Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. Case No. 2008-02011-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 ROMUALDO CIPRO, JR. Plaintiff Case No. 2008-02011-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: Romualdo Cipro, Jr. 39 Circle Drive Medina, Ohio 44256 RDK/laa 5/14 James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 Filed 5/21/08 Sent to S.C. reporter 8/1/08

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