Davis v. Ohio Dept. of Transp.

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[Cite as Davis v. Ohio Dept. of Transp., 2009-Ohio-6895.] 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 DEBRA L. DAVIS Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2009-04823-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On April 23, 2009, at approximately 1:30 p.m., plaintiff, Debra L. Davis, was traveling north on Interstate 77 near milepost 101 in Stark County, when her 1995 Pontiac Firebird struck a pothole causing tire and rim damage to the vehicle. {¶ 2} 2) Plaintiff implied 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 defects such as the pothole her car struck. Plaintiff filed this complaint seeking to recover $367.60, the cost of a replacement tire and rim. The filing fee was paid. {¶ 3} 3) Defendant denied liability based on the contention no DOT personnel had any knowledge of the pothole at milepost 101 on Interstate 77 prior to plaintiff s property damage occurrence. Defendant denied receiving any previous reports regarding the particular pothole. 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 establish the roadway was negligently maintained or that her damage was proximately caused by any conduct attributable to DOT. Defendant submitted records showing DOT personnel patched potholes in the vicinity of plaintiff s incident on December 3, 2008, December 11, 2008, January 21, 2009, January 23, 2009, February 20, 2009, March 6, 2009, and March 31, 2009. Defendant stated 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, no potholes were discovered in the vicinity of milepost 101 on Interstate 77 the last time that section of roadway was inspected prior to April 23, 2009. Defendant explained that if ODOT personnel 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 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. There is no evidence defendant had actual notice of the pothole on Interstate 77 prior to 1:30 p.m. on April 23, 2009. {¶ 7} Therefore, to find liability plaintiff must prove DOT had constructive notice of the defect. 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 defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. {¶ 8} In order for there to be constructive notice, plaintiff must show sufficient time has elapsed after the dangerous condition appears, so that under the circumstances defendant should have acquired knowledge of its existence. Guiher v. Dept. of Transportation (1978), 78-0126-AD. Size of the defect 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. A finding of constructive notice is a determination the court must make on the facts of each case not simply by applying a pre-set time standard for the discovery of certain road hazards. Bussard, 31 Ohio Misc. 2d at 4, 31 OBR 64, 567 N.E. 2d 1179. Obviously, the requisite length of time sufficient to constitute constructive notice varies with each specific situation. Danko v. Ohio Dept. of Transp. (Feb. 4, 1993), Franklin App. 92AP-1183. No evidence has shown DOT had constructive notice of the pothole. {¶ 9} 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. Plaintiff has failed to introduce sufficient evidence to prove defendant maintained a known hazardous roadway condition. Plaintiff has failed to prove that her property damage was connected to any conduct under the control of defendant, defendant was negligent in maintaining the roadway area, or that there was any negligence on the part of defendant. 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 DEBRA L. DAVIS Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2009-04823-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: Debra L. Davis 2121 Denise Drive N.E. New Philadelphia, Ohio 44663 RDK/laa 8/10 Filed 8/28/09 Sent to S.C. reporter 12/23/09 Jolene M. Molitoris, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223

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