Miller v. Ohio Dept. of Transp.
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[Cite as Miller v. Ohio Dept. of Transp., 2008-Ohio-4197.] 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 ANTHONY R. MILLER Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2008-01898-AD -2- MEMORANDUM DECISION Case No. 2008-01898-AD Clerk Miles C. Durfey MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On January 11, 2008, at approximately 6:45 a.m., plaintiff, Anthony R. Miller, was traveling south on State Route 57, near the intersection of Route 82, in Grafton, Ohio, when his automobile struck a pothole causing tire damage to the vehicle. {¶ 2} 2) Plaintiff asserted that his 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 $170.00, the cost of a replacement tire. Plaintiff submitted the $25.00 filing fee and seeks reimbursement of that cost along with his damage claim. {¶ 3} 3) Defendant denied liability based on the contention that no DOT personnel had any knowledge of the pothole prior to plaintiff s property damage occurrence. Defendant denied receiving any calls or complaints about the particular pothole which DOT located at milemarker 12.0 on State Route 57 in Lorain County. Defendant suggested that, 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. Defendant contended that plaintiff did not produce any evidence to establish the length of time the pothole existed prior to the January 11, 2008. {¶ 4} 4) Defendant denied that the roadway was negligently maintained. Defendant explained that DOT Lorain County Manager, conducts roadway inspections on all state roadways within the county on a routine basis, at least one to two times a month. Apparently, no potholes were discovered at milemarker 12.0 on State Route 57 Case No. 2008-01898-AD -3- MEMORANDUM DECISION the last time that section of roadway was inspected prior to January 11, 2008. Defendant s records show that pothole patching operations were conducted by DOT crews in the vicinity of plaintiff s incident on December 4, 2007, December 19, 2007, December 24, 2007, January 7, 2008, and January 11, 2008, the day of plaintiff s property damage event. 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 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, 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. {¶ 7} Plaintiff has not produced sufficient evidence to indicate the length of time that the particular pothole was present on the roadway prior to the incident forming the basis of this claim. Plaintiff has not shown that 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 that 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 that defendant had constructive notice of the pothole. Plaintiff has not produced any evidence to infer that defendant, in a general sense, maintains its highways negligently or that defendant s Case No. 2008-01898-AD -4- acts caused the defective condition. Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD. MEMORANDUM DECISION 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, 587 N.E. 2d 891. Therefore, defendant is not liable for any damage that plaintiff may have suffered from the pothole. 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 ANTHONY R. MILLER Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2008-01898-AD Clerk Miles C. Durfey ENTRY OF ADMINISTRATIVE DETERMINATION 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. ________________________________ MILES C. DURFEY Clerk Entry cc: Anthony R. Miller 2248 Eastlawn Street Lorain, Ohio 44052 RDK/laa 5/13 Filed 5/29/08 Sent to S.C. reporter 8/18/08 James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223
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