Burley v. Ohio Dept. of Transp.
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[Cite as Burley v. Ohio Dept. of Transp., 2006-Ohio-899.] IN THE COURT OF CLAIMS OF OHIO KEITH L. BURLEY : Plaintiff : v. : CASE NO. 2005-09197-AD : MEMORANDUM DECISION OHIO DEPT. OF TRANSPORTATION Defendant : : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) Plaintiff, Keith L. Burley, stated he was traveling, northbound on Route 33 (Riverside Dr. in Dublin OH), approximately 200 feet north of the intersection at Stratford Ave., on August 2, 2005, when his truck struck a very large, deep pothole (approx 1 foot wide X 2-3 feet long X 3 inches deep), causing tire and wheel damage to the vehicle. Plaintiff further stated the damage-causing pothole was located on Riverside Drive about one mile south of the Columbus Zoo in Powell, Ohio, Delaware, County. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $444.64, his total cost of automotive repair which plaintiff contends he incurred as a result of negligence on the part of defendant, Department of Transportation ( DOT ), in maintaining the roadway. The $25.00 filing fee was paid and plaintiff seeks recovery of that amount. {¶ 3} 3) Defendant denied liability based on the fact it professed to have no knowledge of the damage-causing pothole prior to plaintiff s incident. Defendant denied receiving any prior complaints about the pothole which DOT located at milepost 0 on SR 257 in Delaware County. {¶ 4} 4) Plaintiff did not submit any evidence to establish the length of time the pothole existed prior to the August 2, 2005, property damage event. {¶ 5} 5) Furthermore, defendant explained DOT employees conduct roadway inspections on a routine basis and had any of these employees detected a roadway defect that would have promptly been repaired. Defendant contended, plaintiff did not produce sufficient evidence to prove DOT breached any duty of care owed to the traveling public in respect to roadway maintenance. CONCLUSIONS OF LAW {¶ 6} 1) 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. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723. {¶ 7} 2) 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. v. ODOT (1986), 34 Ohio App. 3d 247. McClellan 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. {¶ 8} 3) There is no evidence defendant had actual notice of the damage-causing pothole. {¶ 9} 4) 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 (pothole) developed. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. {¶ 10} 5) 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 297. 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 Transportation (1999), 99-07011-AD. v. Ohio Department of Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole. {¶ 11} 6) evidence, that Plaintiff has not shown, by a preponderance of the 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 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. IN THE COURT OF CLAIMS OF OHIO KEITH L. BURLEY : Plaintiff : v. : CASE NO. 2005-09197-AD : ENTRY OF ADMINISTRATIVE DETERMINATION OHIO DEPT. OF TRANSPORTATION Defendant : : : : : : : : : : : : : : : : : : 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. are assessed against plaintiff. Court costs 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: Keith L. Burley 6950 Concord Bend Drive Powell, Ohio 43065 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 1/20 Filed 1/26/06 Sent to S.C. reporter 2/22/06
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