DeRosa v. Ohio Dept. of Transp.
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[Cite as DeRosa v. Ohio Dept. of Transp., 2006-Ohio-7214.] IN THE COURT OF CLAIMS OF OHIO DARIN DEROSA : Plaintiff : v. : CASE NO. 2006-01793-AD OHIO DEPARTMENT OF TRANSPORTATION : MEMORANDUM DECISION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On January 13, 2006, plaintiff, Darin DeRosa, was traveling west on Interstate 90, between Menter [sic] and the 271 and Cleveland Rt 90 west split, when his automobile struck a pothole in the traveled portion of the roadway. The impact of striking the pothole caused rim damage to plaintiff s vehicle. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $221.58, 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. {¶ 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 between state mileposts 193.8 and 188.6 . . . on I-90 in Lake County. Defendant explained, it is likely the pothole existed for only a short time before the incident. Case No. 2006-01793-AD -2- MEMORANDUM DECISION {¶ 4} 4) Plaintiff did not submit any evidence to establish the length of time the pothole existed prior to the January 13, 2006, 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 defect 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 highways. 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. {¶ 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 accident. condition McClellan or v. defect ODOT alleged (1986), 34 to have Ohio caused App. 3d the 247. 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. There evidence defendant had actual 3) notice of the is no damage-causing Case No. 2006-01793-AD -2- MEMORANDUM DECISION pothole. {¶ 8} 4) The trier of fact is precluded from making an inference of defendant s constructive notice, unless evidence is presented in respect (pothole) developed. to the time the defective condition Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. {¶ 9} 5) Plaintiff has not produced any evidence to infer defendant, in a negligently or that condition. 99-07011-AD. general sense, defendant s maintains acts caused its highways the defective Herlihy v. Ohio Department of Transportation (1999), Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole. {¶ 10} 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 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. Case No. 2006-01793-AD -2- MEMORANDUM DECISION IN THE COURT OF CLAIMS OF OHIO DARIN DEROSA : Plaintiff : v. : CASE NO. 2006-01793-AD OHIO 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: Darin DeRosa 3816 Wade Avenue Ashtabula, Ohio 44004 Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 Plaintiff, Pro se For Defendant Case No. 2006-01793-AD RDK/laa 6/14 Filed 7/6/06 Sent to S.C. reporter 3/22/07 -2- MEMORANDUM DECISION
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