Mindlin v. Ohio Dept. of Transp.

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[Cite as Mindlin v. Ohio Dept. of Transp., 2011-Ohio-3871.] 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 HAROLD MINDLIN Plaintiff v. OH DEPARTMENT OF TRANSPORTATION Defendant Case No. 2010-12753-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} On November 30, 2010, at approximately 2:50 p.m., plaintiff, Harold Mindlin, was traveling east on Interstate 270 when his automobile struck a pothole in the right lane at or near mile marker 50, causing substantial damage to the right front wheel and tire. {¶ 2} Plaintiff contends his property damage 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 $250.00, the cost of replacement parts and associated repair expenses. The filing fee was paid. {¶ 3} Defendant denies 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 Case No. 2006-03532-AD -2- MEMORANDUM DECISION which plaintiff encountered. Defendant suggests, 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} Furthermore, defendant asserts plaintiff has not produced evidence to show DOT negligently maintained the roadway. Defendant explains that the DOT Franklin 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 50 on Interstate 270 in the vicinity of plaintiff s incident the last time this roadway was inspected prior to November 30, 2010. Defendant s records show five pothole patching operations were conducted on Interstate 270 in the vicinity of milepost 50 in the six-months prior to plaintiff s damage-causing event. Indeed, defendant admits that pothole patching operations were conducted in the same location as plaintiff s incident and that the last repair was made on November 30, 2010, which is the day of plaintiff s incident. Defendant maintains 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 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 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 damage was proximately caused by defendant s negligence. Plaintiff failed to show that the damagecausing 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. Case No. 2006-03532-AD -4- MEMORANDUM DECISION (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 HAROLD MINDLIN Plaintiff v. OH DEPARTMENT OF TRANSPORTATION Defendant Case No. 2010-12753-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: Case No. 2006-03532-AD Harold Mindlin 7001 Gardeners Path Way Reynoldsburg, Ohio 43068-5144 SJM/laa 4/8 Filed 4/21/11 Sent to S.C. reporter 8/5/11 -6- MEMORANDUM DECISION Jerry Wray, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223

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