Dilbone v. Ohio Dept. of Transp.
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[Cite as Dilbone v. Ohio Dept. of Transp., 2006-Ohio-7208.] IN THE COURT OF CLAIMS OF OHIO JEFF DILBONE : Plaintiff : v. : CASE NO. 2006-02439-AD OHIO DEPT. OF TRANSPORTATION : MEMORANDUM DECISION Defendant : : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On March 6, 2006, at approximately 11:00 p.m., a car owned by plaintiff, Jeff Dilbone, struck a deep pothole in the eastbound lane of US Route 50 in Terrance Park, Ohio. The pothole caused rim damage to plaintiff s vehicle. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $139.78, 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 contention that no DOT personnel had any knowledge of the pothole on the roadway prior occurrence. about to Defendant milepost Defendant plaintiff s 35.73 asserted March located on US plaintiff the 6, 2006, property damage-causing Route 50 in failed to produce damage pothole Hamilton any at County. evidence showing how long the pothole existed prior to 11:00 p.m. on March 6, 2006. {¶ 4} 4) Defendant denied receiving any calls or complaints regarding the particular pothole before plaintiff s incident. Defendant explained DOT employees conduct roadway inspections, at least two discovered times during a month. previous Apparently roadway no potholes inspection. were Defendant suggested the pothole likely, existed for only a short time before the Defendant incident, denied the employees DOT forming basis were of this negligent in claim. regard to roadway maintenance. CONCLUSIONS OF LAW {¶ 5} 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. {¶ 6} 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. {¶ 7} Plaintiff has not produced sufficient evidence to indicate the length of time the particular pothole was present on the roadway prior to the incident forming the basis of this claim. Plaintiff has not shown defendant had actual notice of the pothole for a sufficient length of time to invoke liability. 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 pothole appeared on the roadway. 262. Spires v. Highway Department (1988), 61 Ohio Misc. 2d There is no indication defendant had constructive notice of the pothole. infer Plaintiff has not produced any evidence to defendant, negligently condition. or in a that general sense, defendant s acts caused its the highways defective Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD. Size of the defect (pothole) is insufficient to show notice or duration of existence. Transportation defendant maintains is (1988), not 61 liable suffered from the pothole. Ohio for any Misc. O Neil v. Department of 2d damage 297. plaintiff Therefore, may have IN THE COURT OF CLAIMS OF OHIO JEFF DILBONE : Plaintiff : v. : CASE NO. 2006-02439-AD OHIO DEPT. 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: Jeff Dilbone 7745 Annesdale Drive Cincinnati, Ohio 45243 Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 6/22 Filed 6/30/06 Plaintiff, Pro se For Defendant Sent to S.C. reporter 3/21/07
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