Landers v. Ohio Dept. of Transp.

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[Cite as Landers v. Ohio Dept. of Transp., 2007-Ohio-1273.] Court of Claims of Ohio The Ohio Judicial Center 65 South Front Street, Third Floor Columbus, OH 43215 614.387.9800 or 1.800.824.8263 www.cco.state.oh.us BROCK LANDERS Case No. 2006-06264-AD Plaintiff Deputy Clerk Daniel R. Borchert v. MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION Defendant [Cite as Landers v. Ohio Dept. of Transp., 2007-Ohio-1273.] FINDINGS OF FACT {¶1} 1) On August 16, 2006, at approximately 11:00 a.m., plaintiff, Brock Landers, was traveling on, the eastbound exit ramp from Rt 480 onto Lorain Rd, when his automobile struck a pothole in the roadway. The impact of striking the pothole caused substantial damage to plaintiff s vehicle. {¶2} 2) Plaintiff filed this complaint seeking to recover $503.72, his total cost of automotive repair, and filing fees, 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, approximately at milepost 2.1 on I-480 in Lorain County. Defendant explained, it is more likely than not that the pothole existed in that location for only a relatively short amount of time before plaintiff s incident. {¶4} 4) Plaintiff did not submit ay evidence to establish the length of time the pothole existed prior to the August 16, 2006, property damage event. Plaintiff submitted photographs of the damage-causing pothole and it appears the defective condition depicted is located on the roadway berm. outside the traveled portion of the roadway. {¶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 is not an insurer of the safety of its highways. 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 Case No. 2006-06264-AD -3- MEMORANDUM DECISION constructive notice of the precise condition or defect alleged to have caused the accident. McClellan v. ODOT (1986), 34 Ohio App. 3d 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. {¶8} 3) There is no evidence defendant had actual notice of the damage- causing pothole. {¶9} 4) 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 defective condition (pothole) developed. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262. {¶10} 5) 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. Ohio Department of Transportation (1999), 99-07011-AD. Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole. {¶11} 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 damagecausing 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. {¶12} 7) This court has previously held that the Department of Transportation is not to be held liable for damages sustained by individuals who used the berm or shoulder of a highway for travel without adequate reason. Colagrossi v. Department of Transportation (1983), 82-06474-AD. There is no evidence defendant had actual notice of the damage-causing defect located off the traveled portion of the roadway. No evidence has shown defendant had constructive notice of the defect located off the traveled portion Case No. 2006-06264-AD -4- MEMORANDUM DECISION of the roadway. {¶13} 8) The shoulder of a highway is designed to serve a purpose which may include travel under emergency circumstances. It is for the trier of fact to determine whether driving on the shoulder is a foreseeable and reasonable use of the shoulder of the highway. Dickerhoof v. City of Canton (1983), 6 Ohio St. 3d 128. In the case at bar, plaintiff has offered no reasonable explanation or excuse for using the berm of the highway. {¶14} 9) Plaintiff, in the instant case, has shown no adequate reason for his action of driving on the berm of the highway, consequently, based on the rationale of Colagrossi, supra, this case is denied. If a plaintiff sustains damage because of a defect located off the marked, regularly traveled portion of a roadway, a necessity for leaving the roadway must be shown. Lawson v. Department of Transportation (1977), 75-0612-AD. Inadvertent travel based on inattention is not an adequate reason or necessity for straying from the regularly traveled portion of the roadway. Smith v. Ohio Department of Transportation (2000), 2000-05151-AD. Assuming plaintiff had reason to drive off the roadway he has failed to produce evidence establishing defendant s notice of defective condition. [Cite as Landers v. Ohio Dept. of Transp., 2007-Ohio-1273.] Court of Claims of Ohio The Ohio Judicial Center 65 South Front Street, Third Floor Columbus, OH 43215 614.387.9800 or 1.800.824.8263 www.cco.state.oh.us BROCK LANDERS Plaintiff Case No. 2006-06264-AD Deputy Clerk Daniel R. Borchert v. OHIO DEPARTMENT OF TRANSPORTATION ENTRY OF ADMINISTRATIVE DETERMINATION Defendant Having considered all the evidence in the claim file and, for the reasons set forth in the memorandum decision filed concurrently herewith, judgment is rendered in favor of defendant. Court costs are assessed against plaintiff. 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: Brock Landers 10539 Shale Brook Way Strongsville, Ohio 44149 Keith Swearingen, Acting Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 1/10 Filed 2/6/07 Sent to S.C. reporter 3/20/07

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