Newman v. Dept. of Transp.

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[Cite as Newman v. Dept. of Transp., 2004-Ohio-4731.] IN THE COURT OF CLAIMS OF OHIO ROBB NEWMAN : Plaintiff : v. : DEPARTMENT OF TRANSPORTATION : Defendant CASE NO. 2004-04256-AD MEMORANDUM DECISION : ::::::::::::::::: FINDINGS OF FACT {¶1} On March 19, 2004, at approximately 5:20 p.m., plaintiff, Robb Newman, was traveling east on Ft. Washington Way close to downtown Cincinnati en route to the Columbia Parkway, when his automobile struck a large pothole causing tire and wheel damage to the vehicle. The Columbia Parkway area of U.S. Route 50 was under construction at the time of plaintiff s incident. {¶2} Plaintiff filed this complaint seeking to recover $266.73 for automotive repairs resulting from striking the pothole in the traveled portion of the roadway. Plaintiff has asserted he incurred these damages as a proximate cause of negligence on the part of defendant, Department of Transportation (DOT), in maintaining the roadway near a construction zone on U.S. Route 50 in Hamilton County. The requisite material filing fee was paid. {¶3} Defendant explained the area where plaintiff s damage occurred was located within a construction zone under the control of DOT contractor, Kokosing Construction Company, Inc. (Kokosing). Additionally, defendant denied liability in this matter based on the allegation that neither DOT nor Kokosing had any knowledge of the pothole plaintiff s vehicle struck. Defendant submitted evidence showing Kokosing became aware of potholes on eastbound U.S. Route 50 to Ft. Case No. 2004-04256-AD -2- MEMORANDUM DECISION Washington Way on March 22, 2004, three days after plaintiff s property-damage event. Kokosing personnel were working on U.S. Route 50 on March 19, 2004, between the hours of 7:00 a.m. and 4:00 p.m. {¶4} On June 7, 2004,plaintiff filed a response to defendant s investigation report. Plaintiff stated Kokosing personnel were working in the immediate vicinity of his property damage incident at approximately 5:00 p.m. on March 19, 2004. Plaintiff did not submit any evidence to establish the length of time the pothole was on the roadway prior to the March 19, 2004, property damage event. {¶5} Defendant asserted Kokosing, by contractual agreement, was responsible for maintaining the roadway within the construction area. Therefore, DOT argued Kokosing is the proper party defendant in this action. Defendant implied all duties, such as the duty to inspect, the duty to warn, the duty to maintain, and the duty to repair defects, were delegated when an independent contractor takes control over a particular section of roadway. Defendant has promoted this argument in numerous claims since March 30, 2004. {¶6} Furthermore, defendant again denied having any notice of the damage-causing pothole. Defendant contended plaintiff failed to introduce evidence proving any requisite notice. Plaintiff stated, [o]ne thing I will point out is that Kokosing Const. Co. admits there were potholes on the street that day (March 19, 2004). They were contacted by Cory Carfora (ODOT s project mng.) that day. The claim file is devoid of evidence concerning actual notice of potholes by DOT personnel or DOT contractors on March 19, 2004. CONCLUSIONS OF LAW {¶7} The duty of DOT to maintain the roadway in a safe drivable condition is not delegable to an independent contractor involved in roadway construction. DOT may bear liability for the negligent acts of an independent contractor charged with roadway construction. See Cowell v. Ohio Department of Transportation (2004), 2003-09343-AD, jud. {¶8} Defendant has the duty to maintain its highway in a reasonably safe condition for the motoring public. Knickel v. Ohio Department of Transportation (1976), 49 Ohio App. 2d 335. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Case No. 2004-04256-AD -3- MEMORANDUM DECISION Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723. {¶9} In order to recover in any suit involving injury proximately caused by roadway conditions plaintiff must prove 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. {¶10}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. {¶11}Plaintiff has not produced any evidence to indicate the length of time the pothole was present on the roadway prior to the incident forming the basis of this claim. No evidence has been submitted to show 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. Highway Department (1988), 61 Ohio Misc. 2d 262. 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. Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole. {¶12}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 failed to show that the damage-causing pothole was connected to any conduct under the control of defendant, that defendant was negligent in maintaining the construction area, 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. Consequently, plaintiff s claim is denied. Case No. 2004-04256-AD -4- MEMORANDUM DECISION [Cite as Newman v. Dept. of Transp., 2004-Ohio-4731.] IN THE COURT OF CLAIMS OF OHIO ROBB NEWMAN : Plaintiff : v. : DEPARTMENT OF TRANSPORTATION : Defendant CASE NO. 2004-04256-AD 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. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal. ________________________________ DANIEL R. BORCHERT Deputy Clerk Entry cc: Robb Newman 2129 Easthill Avenue Cincinnati, Ohio 45208 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant DRB/RDK/laa 6/16 Filed 8/12/04 Sent to S.C. reporter 9/8/04

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