Calvert v. Dept. of Transp.

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[Cite as Calvert v. Dept. of Transp., 2008-Ohio-5624.] 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 JOHN W. CALVERT Case No. 2008-03807-AD Plaintiff Deputy Clerk Daniel R. Borchert v. MEMORANDUM DECISION DEPT. OF TRANSPORTATION Defendant [Cite as Calvert v. Dept. of Transp., 2008-Ohio-5624.] FINDINGS OF FACT {¶ 1} 1) Plaintiff, John W. Calvert, asserted he suffered property damage to his automobile while traveling on State Route 2 in Lake County. Plaintiff stated the damage incident occurred when the car in front of me hit a chuckhole propelling debris from the pothole into the path of his vehicle which struck and broke the drivers side head-light lens capsule. Plaintiff recalled the described damage event occurred at approximately 4:00 p.m. on February 28, 2008. {¶ 2} 2) Plaintiff implied the damage to his vehicle was proximately caused by negligence on the part of defendant, Department of Transportation ( DOT ), in failing to maintain the roadway free of defects. Plaintiff filed this complaint seeking to recover $605.52, the cost of automotive repair he incurred. The filing fee was paid. {¶ 3} 3) Defendant denied liability in this matter based on the contention that no DOT personnel had any knowledge of the particular pothole prior to plaintiff s damage occurrence. Defendant denied receiving any previous calls or complaints about the pothole which DOT located near milepost 18.00 on State Route 2 in Lake County. Defendant asserted plaintiff did not produce any evidence to ascertain the length of time the pothole existed prior to 4:00 p.m. on February 28, 2008. Defendant suggested the pothole and pothole debris existed in that location for only a relatively short amount of time before plaintiff s incident. {¶ 4} 4) Furthermore, defendant contended plaintiff failed to prove DOT breached any duty owed to him that resulted in any property damage. Defendant explained the DOT Lake County Manger 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 or pothole debris were discovered in the vicinity of milepost 18.00 the last time State Route 2 was inspected before February 28, 2008. Defendant s records show DOT personnel patched potholes in the vicinity of plaintiff s incident on October 2, 2007, October 29, 2007, December 26, 2007, December 28, 2007, January 11, 2008, January 18, 2008, February 4, 2008, February 7, 2008, February 21, 2008, February 25, 2008, and February 28, 2008. CONCLUSIONS OF LAW Case No. 2008-03807-AD -3- MEMORANDUM DECISION {¶ 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 recover in any suit involving injury proximately caused by roadway conditions plaintiff must prove either: 1) defendant had actual or constructive notice of the condition and failed to responded 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. 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 any evidence to indicate the length of time the concrete debris 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 and pothole debris. 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 defective condition 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 condition of the pothole and pothole debris. 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 Case No. 2008-03807-AD -4- MEMORANDUM DECISION Department of Transportation (1999), 99-07011-AD. {¶ 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 possibility 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} Evidence in the instant action tends to show plaintiff s damage was caused by an act of an unidentified third party, not DOT. Defendant has denied liability based on the particular premise it had no duty to control the conduct of a third person except in cases where a special relationship exists between defendant and either plaintiff or the person whose conduct needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However, defendant may still bear liability if it can be established if some act or omission on the part of DOT was the proximate cause of plaintiff s injury. This court, as trier of fact, Case No. 2008-03807-AD -5- MEMORANDUM DECISION determines questions of proximate causation. Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477. {¶ 10} If any injury is the natural and probable consequence of a negligent act and it is such as should have been foreseen in the light of all the attending circumstances, the injury is then the proximate result of the negligence. It is not necessary that the defendant should have anticipated the injury. It is sufficient that his act is likely to result in an injury to someone. Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E. 327. {¶ 11} Plaintiff has failed to establish his damage was proximately caused by any negligent act or omission on the part of DOT. Plaintiff has not proven the damagecausing debris from the pothole on State Route 2 was either patching material from a deteriorated repair or debris from a long existing pothole. Plaintiff has failed to prove, 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 the damage-causing object was connected to any conduct under the control of defendant or 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. [Cite as Calvert v. Dept. of Transp., 2008-Ohio-5624.] Case No. 2008-03807-AD -7- MEMORANDUM DECISION [Cite as Calvert v. Dept. of Transp., 2008-Ohio-5624.] 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 JOHN W. CALVERT Plaintiff Case No. 2008-03807-AD Deputy Clerk Daniel R. Borchert v. DEPT. OF TRANSPORTATION Defendant ENTRY OF ADMINISTRATIVE DETERMINATION [Cite as Calvert v. Dept. of Transp., 2008-Ohio-5624.] [Cite as Calvert v. Dept. of Transp., 2008-Ohio-5624.] 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: John W. Calvert 2885 Burns Road Madison, Ohio 44057 RDK/laa 7/9 Filed 7/31/08 Sent to S.C. Reporter 10/28/08 James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223

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