Porter v. Ohio Dept. of Transp.
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[Cite as Porter v. Ohio Dept. of Transp., 2006-Ohio-7197.] IN THE COURT OF CLAIMS OF OHIO TRICIA PORTER : Plaintiff : v. : CASE NO. 2006-01271-AD DEPARTMENT OF TRANSPORTATION : MEMORANDUM DECISION Defendant : : : : : : : : : : : : : : : : : : {¶ 1} On December 24, 2005, plaintiff, Tricia Porter, was traveling south on State Route 7, between Shadyside [and] the Moundsville bridge, when her automobile struck a rock which was laying on the right edgeline of the roadway. Plaintiff explained another car was traveling in the left southbound lane, a little over the center line, next to her vehicle and she drove to the right, to avoid hitting or being hit by that car. As plaintiff maneuvered her vehicle to the right side of the traveling road lane, she saw a rock about one to two feet long laying on the edge of the paved roadway. Plaintiff related she tried to avoid the rock, but ran over it causing tire and rim damage to her automobile. rock had apparently come Plaintiff observed the damage-causing off the hillside adjacent to the roadway and bounced over the retaining wall erected along the paved roadway berm area. {¶ 2} Plaintiff filed this complaint alleging the damage to her car was proximately caused by negligence on the part of defendant, Department of Transportation ( DOT ), in failing to keep State Route 7 free of rock debris. Plaintiff is seeking $238.27, the cost of automotive repair resulting from the December 24, 2005, incident, plus filing fee reimbursement. {¶ 3} Defendant denied any liability in this matter based on the contention DOT personnel did not have any knowledge about rock debris on State Route 7 prior to the December 24, 2005, property damage occurrence. Defendant located this damage occurrence at about milepost 9.05 on State Route 7 in Belmont County. Defendant related no phone calls or other complaints concerning rock debris on the roadway were received during the period extending over a year to December 24, 2005. defendant explained periodic litter patrol Furthermore, operations and roadway inspections were conducted in the area and no problems were discovered. Patrols were conducted on December 22, 2005, and no roadside debris was found. Defendant suggested the rock debris probably existed on the particular area of State Route 7 for only a relatively short amount of time before plaintiff s incident. Defendant denied acting negligently in respect to roadway maintenance. {¶ 4} 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, highways. defendant is 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. warning signs Generally, defendant has a duty to post notifying dangerous conditions. motorists of highway defects Cole v. State (1979), 78-0805-AD. or The facts of the instant claim do not establish defendant breached any duty in respect to signage or roadway maintenance. {¶ 5} Therefore, in order for plaintiff to recover under a negligence theory she must prove, by a preponderance of the evidence, defendant had actual or constructive notice of the rocky debris responded and a in failed negligent Transportation (1976), to respond in a reasonable time or manner. Denis v. Department of 75-0287-AD; O Hearn v. Department of Transportation (1985), 84-03278-AD. A breach of the duty to maintain the highways must be proven, by a preponderance of the evidence, showing defendant had actual or constructive notice of the precise accident. condition or defect alleged to have caused the McClellan v. ODOT (1986), 34 Ohio App. 3d 247. In the instant claim, plaintiff has failed to prove defendant had requisite notice of the damage-causing rock debris. No facts have shown defendant had actual or constructive notice of the rock fall which proximately caused plaintiff s damage. {¶ 6} Both plaintiff and DOT in a general sense, had notice of rock falls question. occurring However, on the portion plaintiff has of State failed to Route prove, 7 in by a preponderance of the evidence, that defendant knew or should have known the particular rock fall which resulted in plaintiff s property damage was likely to occur on December 24, 2005. Plaintiff has failed to prove the particular rock face from which the roadway debris originated showed any signs of instability before inhibiting, and December inspecting 24, 2005. measures taken The by precautionary, defendant were adequate and did not fall below the standard of care owed to the traveling public. Consequently, plaintiff has failed to present any set of facts to invoke ensuing liability on DOT. v. Dept. of Transportation (1999), 99-01047-AD. See Mosby IN THE COURT OF CLAIMS OF OHIO TRICIA PORTER : Plaintiff : v. : CASE NO. 2006-01271-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: Tricia Porter 201 E. 36th Street Shadyside, Ohio 43947 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 5/24 Filed 6/20/06 Sent to S.C. reporter 3/16/07
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