Booth v. Dept. of Transp.
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[Cite as Booth v. Dept. of Transp., 2008-Ohio-6452.] 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 TINA E. BOOTH Plaintiff v. DEPARTMENT OF TRANSPORTATION Defendant Case No. 2008-04498-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On March 15, 2008, at approximately 7:00 a.m., plaintiff, Tina E. Booth, was traveling north on State Route 43 (Market Street) near milepost 18.80 in Stark County, when her automobile, a 2007 Saturn Aura XE, struck a huge, deep pothole causing tire and rim damage to the vehicle. {¶ 2} 2) Plaintiff asserted her property damage was proximately caused by negligence on the part of defendant, Department of Transportation ( DOT ), in failing to maintain the roadway free of hazards. Plaintiff filed this complaint seeking to recover damages in the amount of $685.69, her costs incurred for replacement parts and related repair expenses. The filing fee was paid. {¶ 3} 3) Defendant explained the pothole plaintiff s vehicle struck had been previously repaired with patching material on January 17, 2008 and the patch had deteriorated by March 15, 2008, the date of plaintiff s incident. Defendant contended plaintiff did not offer any evidenced to establish the length of time the particular pothole existed prior to her March 15, 2008 damage occurrence. Defendant noted the DOT Stark 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, the deteriorated pothole patch was not discovered at milepost 18.80 on State Route 43 the last time that section of roadway was inspected before March 15, 2008. Defendant submitted a photograph depicting roadway repairs (pothole patch) at milepost 18.80 on State Route 43 after plaintiff s incident. Defendant submitted DOT maintenance records which show maintenance activity including pothole patching. The record submitted does not have any notation regarding pothole patching for January 17, 2008. Potholes were repaired within the vicinity of plaintiff s incident on September 24, 2007 and again on September 25, 2007. Defendant related that if ODOT personnel had detected any defects they would have been promptly scheduled for repair. 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 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. {¶ 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 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. {¶ 7} For plaintiff to prevail on a claim of negligence, she must prove, by a preponderance of the evidence, that defendant owed her a duty, that it breached that duty, and that the breach proximately caused her injuries. Armstrong v. Best Buy Company, Inc. 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E. 2d 1088, ¶8 citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff has the burden of proving, by a preponderance of the evidence, that she suffered a loss and that this loss was proximately caused by defendant s negligence. Barnum v. Ohio State University (1977), 76-0368-AD. However, [i]t is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain such burden. Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed. {¶ 8} Ordinarily in a claim involving roadway defects, plaintiff must prove either: 1) defendant had actual or constructive notice of the defective condition 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. Transportation (1976), 75-0287-AD. Denis v. Department of Defendant acknowledged the damage-causing pothole plaintiff s vehicle struck was a defect that had been previously patched and deteriorated. This fact alone does not provide proof of negligent maintenance. A pothole patch that deteriorates in less than ten days is prima facie evidence of negligence maintenance. See Matala v. Ohio Department of Transportation, 2003- 01270-AD, 2003-Ohio-2618. However, a pothole patch which may or may not have deteriorated over a longer time frame does not constitute in and of itself conclusive evidence of negligent maintenance. See Edwards v. Ohio Department of Transportation, District 8 (2006), 2006-01343-AD, jud, 2006-Ohio-7173. {¶ 9} Plaintiff has not shown, by a preponderance of the evidence, that defendant failed to discharge a duty owed to plaintiff, or that plaintiff s injury was proximately caused by defendant s negligence. Plaintiff has 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 or its agents. Taylor v. Transportation Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. 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 TINA E. BOOTH Plaintiff v. DEPARTMENT OF TRANSPORTATION Defendant Case No. 2008-04498-AD Deputy Clerk Daniel R. Borchert ENTRY OF ADMINISTRATIVE DETERMINATION 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: Tina E. Booth 1000 44th N.E. Canton, Ohio 44714 RDK/laa 8/20 Filed 9/25/08 Sent to S.C. reporter 12/3/08 James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223
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