Mates v. Ohio Dept. of Transp.

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[Cite as Mates v. Ohio Dept. of Transp., 2007-Ohio-6392.] 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 NANCY J. MATES Case No. 2007-04397-AD Plaintiff Deputy Clerk Daniel R. Borchert v. MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION Defendant FINDINGS OF FACT {¶1} 1) On March 19, 2007, at approximately 10:15 p.m., plaintiff, Nancy J. Mates, was traveling east on State Route 18, approximately 1/4 mile east of the I-71 interchange, when her automobile struck a large deep pothole causing wheel damage to the vehicle. {¶2} 2) Plaintiff implied her property damage was proximately caused by negligence on the part of defendant, Department of Transportation ( DOT ), in failing to maintain the roadway. Consequently, plaintiff filed this complaint seeking to recover $190.00, the cost of a replacement wheel. The $25.00 filing fee was paid and plaintiff requests reimbursement of that amount along with her damage claim. {¶3} 3) Defendant denied liability based on the contention that no DOT personnel had any knowledge of the particular pothole prior to plaintiff s March 19, 2007, property damage event. Defendant denied receiving any previous complaints concerning the pothole, which DOT located, at approximately milepost 15.99 on SR 18 in Medina County. Defendant suggested the particular damage-causing pothole, existed in that location for only a relatively short amount of time before the time of the incident. Case No. 2007-04397-AD {¶4} 4) -2- MEMORANDUM DECISION Furthermore, defendant asserted plaintiff has failed to offer evidence of negligent roadway maintenance. Defendant related DOT Medina County Manager inspects all state roadways within Medina County, at least one to two times a month. Apparently, no pothole was discovered at milepost 15.99 on State Route 18 the last time that roadway was inspected before March 19, 2007. DOT maintenance records note potholes were patched on State Route 18 between mileposts 14.00 and 21.00 on February 23, 2007. 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, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723, 588 N.E. 2d 864. {¶6} In order to prove a breach of duty by defendant to maintain the highways, plaintiff must establish, by a preponderance of the evidence, that DOT 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, 517 N.E. 2d 1388. 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, 31 OBR 64, 507 N.E. 2d 1179. No evidence has shown defendant had actual notice of the damage causing pothole {¶7} Size of the defect is insufficient to show notice or duration of existence. O Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d 287, 587 N.E. 2d 891. A finding of constructive notice is a determination the court must make on the facts of each case not simply by applying a pre-set-time standard for the discovery of certain road hazards. Bussard, at 4, 31 OBR 64, 507 N.E. 2d 1179. Obviously, the requisite length of time sufficient to constitute constructive notice varies with each specific Case No. 2007-04397-AD -3- MEMORANDUM DECISION situation Danko v. Ohio Dept. of Transp. (Feb. 4, 1993), Franklin App. 92AP-1183. 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, 577 N.E. 2d 458. There is no indication defendant had constructive notice of the pothole pavement condition. {¶8} For plaintiff to prevail on a claim of negligence, he must prove, by a preponderance of the evidence, that defendant owed him a duty, that it breached that duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy Company, Inc. 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E. 2d 1088, ¶8 citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff has the burden of proving, by a preponderance of the evidence, that he suffered a loss and that this loss was proximately caused by defendant s negligence. Barnum v. Ohio State University (1977), 76-0368-AD. However, [i]t is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain such burden. Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed. {¶9} Plaintiff has not shown, by a preponderance of the evidence, that defendant failed to discharge a duty owed to her, or that her 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 defendant, that defendant was negligent in maintaining the roadway area, or that there was any negligence on the part of defendant. 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. Consequently, plaintiff s claim is denied. [Cite as Mates v. Ohio Dept. of Transp., 2007-Ohio-6392.] 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 NANCY J. MATES Plaintiff Case No. 2007-04397-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: Nancy J. Mates 8534 Creekside Drive Sagamore Hills, Ohio 44067 RDK/laa 8/16 Filed 9/6/07 Sent to S.C. Reporter 11/29/07 James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223

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