Fine v. Ohio Dept. of Transp.

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[Cite as Fine v. Ohio Dept. of Transp., 2006-Ohio-7222.] IN THE COURT OF CLAIMS OF OHIO JOHN P. FINE : Plaintiff : v. : CASE NO. 2006-03273-AD OHIO DEPARTMENT OF TRANSPORTATION : MEMORANDUM DECISION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On November 11, 2005, Donna Fine was driving a 2005 Dodge Grand Caravan on Interstate 70 exiting at US Route 42 through a construction zone, when the vehicle struck a pothole in the traveled portion of the roadway. The pothole caused tire and rim damage to the Dodge Grand Caravan which is owned by plaintiff, John P. Fine, the spouse of Donna Fine. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $819.80, for vehicle repairs resulting from striking the pothole in the traveled portion of the roadway. Plaintiff has asserted he incurred these damages as a proximate cause of negligence on the part of defendant, Department of Transportation ( DOT ), in maintaining the roadway near a construction zone on Interstate 70 in Madison County. The filing fee was paid and plaintiff requested reimbursement of that amount. {¶ 3} 3) Defendant explained the area where plaintiff s damage occurred was located within a construction zone under the control of DOT contractor, Kokosing Construction Company, Inc. ( Kokosing ). Additionally, defendant denied liability in this matter based on the allegation that neither DOT nor Kokosing had any knowledge Defendant defects of the submitted as soon pothole evidence as notice plaintiff s showing of the vehicle Kokosing defect is struck. repairs roadway received. The particular pothole was promptly repaired after notice of the roadway condition was received. {¶ 4} 4) Despite filing a response, plaintiff did not submit any evidence to establish the length of time the pothole was on the roadway event. was, prior to the November 11, 2005, property damage Plaintiff suggested the damage-causing roadway defect man made construction by Kokosing. activities do The not Diary indicate Remarks Kokosing for created the a roadway defect on Interstate 70 at US Route 42 on or before November 15, 2005, although work was performed in the area on November 13, 2005. {¶ 5} 5) Defendant asserted Kokosing, by contractual agreement, was responsible for maintaining the roadway within the construction area. Therefore, DOT argued Kokosing 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 notice. the failed defendant damage-causing to introduce again pothole. evidence denied having Defendant proving any any contended requisite The claim is devoid of evidence concerning actual or constructive notice of the particular pothole by DOT personnel or DOT contractors prior to November 15, 2005. 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. 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. 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 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} 4) Defendant is only liable for roadway conditions of which it has notice, but fails to reasonably correct. v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1. Bussard {¶ 11} 5) Plaintiff has not produced any evidence to indicate the length of time the pothole 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 pothole. Additionally, the trier of fact is precluded from making an inference of defendant s constructive notice, unless evidence is presented in appeared on the roadway. respect to the time the pothole Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. There is no indication defendant had constructive notice of the pothole. Plaintiff has not produced any evidence to infer defendant, in a general sense, maintains its highways negligently or that defendant s acts caused the defective condition. Herlihy v. Transportation (1999), 99-07011-AD. liable for any damage plaintiff Ohio Department of Therefore, defendant is not may have suffered from the pothole. {¶ 12} 6) evidence, Plaintiff has not shown, by a preponderance of the 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. IN THE COURT OF CLAIMS OF OHIO JOHN P. FINE : Plaintiff : v. : CASE NO. 2006-03273-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: John P. Fine 114 Rockhill Drive West Milton, Ohio 45383 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 6/15 Filed 7/6/06 Sent to S.C. reporter 3/22/07

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