Hardin v. Ohio Dept. of Transp.
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[Cite as Hardin v. Ohio Dept. of Transp., 2007-Ohio-5279.] 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 MCKINLEY E. HARDIN Case No. 2007-02661-AD Plaintiff Deputy Clerk Daniel R. Borchert v. MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION Defendant FINDINGS OF FACT {¶1} 1) On February 20, 2007, at approximately 7:00 p.m., a truck owned by plaintiff, McKinley E. Hardin, was traveling east, from I 275 towards Amelia, Ohio, on 839 Ohio Pike (AKA Beechmont Ave or SR 125), when the vehicle struck a pothole causing substantial damage. {¶2} 2) Plaintiff filed this complaint seeking to recover $1,096.69, for replacement parts and automotive repair resulting from the February 20, 2007, property damage event. Plaintiff implied the damage to his vehicle was proximately caused by negligence on the part of defendant, Department of Transportation ( DOT ), in maintaining the roadway. The filing fee was paid. {¶3} 3) Defendant denied liability based on the contention no DOT personnel had any knowledge of the pothole on the roadway prior to plaintiff s damage occurrence. Defendant located the damage-causing pothole, between milepost 1.96 and milepost 2.13 on SR 125 in Clermont County. Defendant asserted plaintiff failed to produce any evidence showing how long the pothole existed prior to the incident forming the basis of this claim. Defendant suggested, it is likely the pothole existed for only a short time before the incident. {¶4} 4) Defendant denied receiving any calls or complaints regarding the Case No. 2007-02661-AD -2- MEMORANDUM DECISION particular pothole before plaintiff s incident. Defendant explained DOT employees conduct roadway inspections, at least two times a month. Apparently no potholes were discovered during previous roadway inspections. Defendant denied DOT employees were negligent in regard to roadway maintenance. Defendant s records show pothole patching operations were conducted on State Route 125 on February 20, 2007, between mileposts 1.00 and 7.00. Presumedly the pothole plaintiff s vehicle struck was not discovered. {¶5} 5) Plaintiff has not submitted evidence to establish the length of time the pothole existed prior to his property damage event. CONCLUSIONS OF LAW {¶6} 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} 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 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} 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. 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. Spires v. Ohio 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 Case No. 2007-02661-AD -3- MEMORANDUM DECISION 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. Size of the defect (pothole) is insufficient to show notice or duration of existence. O Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d 287. Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole. [Cite as Hardin v. Ohio Dept. of Transp., 2007-Ohio-5279.] 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 MCKINLEY E. HARDIN Plaintiff Case No. 2007-02661-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. ________________________________ DANIEL R. BORCHERT Deputy Clerk Entry cc: McKinley E. Hardin 1937 Harvey Road New Richmond, Ohio 45157 RDK/laa 6/26 Filed 8/7/07 Sent to S.C. reporter 10/2/07 James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223
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