Harper v. Ohio Dept. of Transp.
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[Cite as Harper v. Ohio Dept. of Transp., 2006-Ohio-1022.] IN THE COURT OF CLAIMS OF OHIO LYNAY T. HARPER : Plaintiff : v. : CASE NO. 2005-10641-AD : MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On September 6, 2005, at approximately 11:30 a.m., plaintiff, Lynay T. Harper, was traveling south on Interstate 475 when a passing motorist struck a large tire laying on the roadway and propelled the tire debris into the path of plaintiff s vehicle. The tire debris hit the front of plaintiff s car causing damage to the bumper cover and hood. The incident was approximately located near Exit 8 on Interstate 475 in Lucas County. {¶ 2} 2) Consequently, plaintiff filed this complaint seeking to recover $1,620.00, her cost of automotive repair which she contends was incurred as a result of negligence on the part of defendant, Department of Transportation, in maintaining the roadway. Plaintiff submitted the filing fee and requests reimbursement of that amount. {¶ 3} 3) Defendant has denied any liability for plaintiff s damage. Defendant denied having any knowledge of the tire debris condition prior to plaintiff s incident. Plaintiff has failed to produce any evidence establishing the length of time the tire debris condition was on the roadway prior to her property damage occurrence. Defendant suggested the debris condition existed for a short period of time prior to plaintiff s September 6, 2005, property damage event. CONCLUSIONS OF LAW {¶ 4} 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 Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723. {¶ 5} In proximately plaintiff order caused must to by prove recover roadway either: in any suit conditions 1) involving including defendant had injury debris, actual or constructive notice of the debris 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. {¶ 6} 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. {¶ 7} Plaintiff has not produced any evidence to indicate the length of time the debris condition 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 debris. 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 debris appeared on the roadway. 262. Spires v. Highway Department (1988), 61 Ohio Misc. 2d There is no indication defendant had constructive notice of the debris. {¶ 8} Finally, 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 roadway debris. IN THE COURT OF CLAIMS OF OHIO LYNAY T. HARPER : Plaintiff : v. : CASE NO. 2005-10641-AD : ENTRY OF ADMINISTRATIVE DETERMINATION OHIO DEPARTMENT 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: Lynay T. Harper 3915 Cloud Park Drive Apt. C6 Dayton, Ohio 45424 Plaintiff, Pro se Gordon Proctor, Director For Defendant Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 1/31 Filed 2/14/06 Sent to S.C. reporter 3/3/06
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