Grabner v. Ohio Dept. of Transp.

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[Cite as Grabner v. Ohio Dept. of Transp., 2006-Ohio-7196.] IN THE COURT OF CLAIMS OF OHIO JOHN W. GRABNER : Plaintiff : v. : CASE NO. 2006-01025-AD DEPARTMENT OF TRANSPORTATION : MEMORANDUM DECISION Defendant : : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On September 27, 2005, plaintiff, John W. Grabner, was traveling east on Interstate 480 past the Interstate 77 interchange in Cuyahoga County, when his automobile struck a pothole causing tire damage to the vehicle. The particular section of Interstate 480 was under construction at the time of plaintiff s incident. {¶ 2} 2) Consequently, plaintiff filed this complaint seeking to recover $366.58, for automotive repairs resulting from the September 27, 2005, incident. Plaintiff asserted he incurred these damages as a proximate cause of negligence on the part of defendant, Department of Transportation ( DOT ), in maintaining the roadway in a construction zone on Interstate 480 in Cuyahoga County. The $25.00 filing fee was paid. {¶ 3} 3) Defendant explained the area where plaintiff s damage occurred was located within a construction area under the control of DOT contractor Karvo Paving Company ( Karvo ). Additionally, defendant denied liability in this matter based on Case No. 2006-01025-AD -2- MEMORANDUM DECISION the allegation that neither DOT nor Karvo had any knowledge of the pothole plaintiff s vehicle struck. {¶ 4} 4) Plaintiff did not submit any evidence to establish the length of time the pothole was on the roadway prior to his property damage incident. {¶ 5} 5) Defendant asserted Karvo, by contractual agreement, was responsible for construction area. maintaining the roadway within the Therefore, DOT argued Karvo 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. {¶ 6} 6) Furthermore, notice of plaintiff the failed defendant damage-causing to introduce again pothole. evidence denied having Defendant proving any any contended requisite notice. CONCLUSIONS OF LAW {¶ 7} 1) The duty of DOT to maintain the roadway in a safe drivable condition is not delegable to an independent contractor involved in roadway construction. ODOT 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; 2004-Ohio-151. {¶ 8} 2) 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. Case No. 2006-01025-AD However, -2- defendant highways. is MEMORANDUM DECISION not an insurer of the safety of its See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723. {¶ 9} 3) 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} of which 4) it Defendant is only liable for roadway conditions has notice, but fails to reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1. {¶ 11} indicate 5) the Plaintiff length of has time not the produced pothole any was evidence present to on the roadway prior to the incident forming the basis of this claim. No evidence notice of has the been submitted pothole. to show Additionally, defendant the trier had of actual 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. (1988), 61 Ohio Misc. 2d 262. had constructive notice of Spires v. Highway Department There is no indication defendant the pothole. Plaintiff has not produced any evidence to infer defendant, in a general sense, maintains its highways negligently caused the defective condition. or that defendant s acts Herlihy v. Ohio Department of Case No. 2006-01025-AD -2- MEMORANDUM DECISION Transportation (1999), 99-07011-AD. liable for any damage plaintiff Therefore, defendant is not may have suffered from the pothole. {¶ 12} 6) 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 maintaining defendant, the that construction defendant area, or was that negligent there negligence on the part of defendant or its agents. Transportation Dept. (1998), 97-10898-AD; was in any Taylor v. Weininger v. Department of Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), Consequently, plaintiff s claim is denied. 2000-04758-AD. Case No. 2006-01025-AD -2- MEMORANDUM DECISION Case No. 2006-01025-AD -2- MEMORANDUM DECISION IN THE COURT OF CLAIMS OF OHIO JOHN W. GRABNER : Plaintiff : v. : CASE NO. 2006-01025-AD DEPARTMENT OF TRANSPORTATION : ENTRY OF ADMINISTRATIVE DETERMINATION Defendant : : : : : : : : : : : : : : : : : : Having considered all the evidence in the claim file and, for the reasons concurrently defendant. set forth herewith, in the judgment is memorandum rendered decision in filed favor Court costs are assessed against plaintiff. of 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: John W. Grabner 16515 Heatherwood Lane Chagrin Falls, Ohio 44023 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant Case No. 2006-01025-AD RDK/laa 5/18 Filed 6/14/06 Sent to S.C. reporter 3/16/07 -2- MEMORANDUM DECISION

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