Huguenard v. Ohio Dept. of Transp.
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[Cite as Huguenard v. Ohio Dept. of Transp., 2008-Ohio-7070.] 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 RICHARD E. HUGUENARD Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2008-05761-AD Clerk Miles C. Durfey MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) Plaintiff, Richard E. Huguenard, stated that he sustained damage to his automobile [w]hile driving east bound on State Rt 25 in Withamsville/Cincinnati, Ohio, near (the) Union Township Fire Dept., when the vehicle struck a pothole in the roadway causing tire and rim damage. Apparently plaintiff s damage incident occurred on November 17, 2006. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $212.96 for replacement parts and automotive repair resulting from the November 17, 2006 property damage event. Plaintiff implied that the damage to his vehicle was caused by 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 contention that no DOT personnel had any knowledge of the pothole on the roadway prior to plaintiff s damage occurrence. Defendant located the damage-causing pothole, approximately at milepost 2.13 on SR 125 in Clermont County. Defendant asserted that plaintiff failed to produce any evidence showing how long the pothole existed prior to the incident forming the basis of this claim. Defendant suggested that, 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 particular pothole before plaintiff s incident. Defendant explained that DOT employees conduct roadway inspections, at least two times a month. Apparently no potholes were discovered during previous roadway inspections. Defendant denied that DOT employees were negligent in regard to roadway maintenance. Defendant s records show pothole maintenance operations were conducted on State Route 125 in the vicinity of plaintiff s incident on July 28, 2006 and September 29, 2006. Plaintiff has not submitted evidence to establish the length of time that the pothole existed prior to his property damage event. {¶ 5} 5) On September 18, 2008, plaintiff submitted a response to defendant s investigation report. Plaintiff asserted that the pothole would have never been as large if the defendant had maintained the roadway. However, plaintiff provided no evidence with respect to how long the pothole existed at that location. 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, 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. {¶ 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, 517 N.E. 2d 1388. Defendant is only liable for roadway condition 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. {¶ 8} 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 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. Plaintiff has not produced any evidence to infer that 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. 578 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 RICHARD E. HUGUENARD Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2008-05761-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: Richard E. Huguenard 1435 Home Wood Court Amelia, Ohio 45102 RDK/laa 9/11 Filed 10/28/08 Sent to S.C. reporter 1/23/09 James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223
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