Shabazz v. Ohio Dept. of Transp.
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[Cite as Shabazz v. Ohio Dept. of Transp., 2008-Ohio-5921.] 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 ABDUL SHABAZZ Plaintiff v. OHIO DEPT. OF TRANSPORTATION Defendant Case No. 2008-04510-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On March 15, 2008, at approximately 1:30 p.m., plaintiff, Abdul Shabazz, was traveling west on State Route 161 in Licking County, when his automobile struck a pothole causing tire and rim damage to the vehicle. {¶ 2} 2) Plaintiff implied his property damage was proximately caused by negligence on the part of defendant, Department of Transportation ( DOT ), in failing to properly maintain the roadway. Plaintiff filed this complaint seeking to recover $2,250.00, the stated cost of automotive repair resulting from the March 15, 2008 damage event. The filing fee was paid. {¶ 3} 3) Defendant denied liability based on the contention that no DOT personnel had any knowledge of the pothole plaintiff s vehicle struck prior to March 15, 2008. Defendant denied receiving any calls or complaints about the pothole which DOT located at milepost 1.65 on State Route 161 in Licking County. Defendant asserted plaintiff did not produce evidence to establish the length of time the pothole existed at milepost 1.65 on State Route 161 prior to 1:30 p.m. on March 15, 2008. 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) Defendant argued plaintiff failed to offer evidence to prove the roadway was negligently maintained. Defendant explained the DOT Licking 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 at milepost 1.65 on State Route 161 the last time that section of roadway was inspected prior to March 15, 2008. DOT records show no pothole patching operations were conducted in the vicinity of plaintiff s damage incident during the sixmonth period preceding March 15, 2008. Defendant observed that if any DOT employees had detected any defects they would have been promptly scheduled for repair. 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 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. {¶ 7} 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. 578 N.E. 2d 891. Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole. 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 ABDUL SHABAZZ Plaintiff v. OHIO DEPT. OF TRANSPORTATION Defendant Case No. 2008-04510-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: Abdul Shabazz 957 Cordera Lane Gahanna, Ohio 43230 RDK/laa James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 7/17 Filed 8/22/08 Sent to S.C. reporter 11/13/08
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