Pelfrey v. Ohio Dept. of Transp.

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[Cite as Pelfrey v. Ohio Dept. of Transp., 2006-Ohio-7220.] IN THE COURT OF CLAIMS OF OHIO BETSY PELFREY : Plaintiff : v. : CASE NO. 2006-02790-AD OHIO DEPARTMENT OF TRANSPORTATION : MEMORANDUM DECISION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On March 4, plaintiff, Betsy through construction a 2006, Pelfrey, was zone at approximately traveling in on Franklin 2:30 p.m., Interstate County, when 270 her automobile struck a pothole causing tire and rim damage to the vehicle. Plaintiff pointed out the damage-causing pothole was located about 1000 ft. south of 161 . . . directly on I-270, Columbus jurisdiction. {¶ 2} 2) Consequently, plaintiff filed this complaint seeking to recover $1,082.66 for replacement parts and automotive repair expenses resulting from the March 4, 2006, incident. Plaintiff has asserted she incurred these damages as a proximate cause of negligence on Transportation construction the part ( DOT ), zone on in of defendant, maintaining Interstate 270 Department the in roadway Franklin in of a County. Plaintiff submitted the filing fee with the complaint. {¶ 3} 3) Defendant explained the area where plaintiff s damage occurred was located within a construction area under the Case No. 2006-02790-AD -2- MEMORANDUM DECISION control of DOT contractor, National Engineering & Contracting Company ( National ). Additionally, defendant denied liability in this matter based on the allegation that neither DOT nor National had any knowledge of the roadway defect plaintiff s vehicle struck. {¶ 4} 4) Plaintiff did not submit any evidence to establish the length of time the defect was on the roadway prior to her property damage incident. {¶ 5} 5) Defendant asserted National, by contractual agreement, was responsible for maintaining the roadway within the construction area. Therefore, DOT argued National 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 contended the defendant damage-causing plaintiff requisite notice. failed to again defective introduce denied having condition. evidence any Defendant proving any Defendant asserted all potholes within the construction zone were promptly patched after discovery. 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. DOT may bear liability for the negligent acts of an independent contractor charged with roadway construction. Cowell v. Ohio Department of Case No. 2006-02790-AD -2- MEMORANDUM DECISION 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. 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. {¶ 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 defective condition 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} 5) Plaintiff has not produced any evidence to indicate the length of time the defective 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 roadway defect. Additionally, the trier of fact inference is precluded from making an of defendant s constructive notice, unless evidence is presented in respect to the time the condition appeared on the roadway. Highway Department (1988), 61 Ohio Misc. 2d 262. Spires v. There is no Case No. 2006-02790-AD indication -2- defendant had MEMORANDUM DECISION constructive notice of the defect. Plaintiff has not produced any evidence to infer defendant, in a general sense, maintains its highways negligently defendant s acts caused the defective condition. Ohio Department of Transportation or that Herlihy v. (1999), 99-07011-AD. Therefore, defendant is not liable for any damage plaintiff may have suffered from the roadway defect. {¶ 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 condition 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. 2006-02790-AD -2- MEMORANDUM DECISION IN THE COURT OF CLAIMS OF OHIO BETSY PELFREY : Plaintiff : v. : CASE NO. 2006-02790-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: Betsy Pelfrey 13827 Fairway Drive Marysville, Ohio 43040 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant Case No. 2006-02790-AD RDK/laa 7/5 Filed 7/13/06 Sent to S.C. reporter 3/22/07 -2- MEMORANDUM DECISION

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