Dulaney v. Ohio Dept. of Transp.
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[Cite as Dulaney v. Ohio Dept. of Transp., 2008-Ohio-6462.] 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 TAMARA DULANEY Plaintiff v. OHIO DEPT. OF TRANSPORTATION Defendant Case No. 2008-06008-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On April 13, 2008, at approximately 1:30 a.m., plaintiff, Tamara Dulaney, was traveling north on State Route 7 around the Logan Street Exit in Jefferson County, when her 2008 Honda Fit Sport struck a huge pot hole causing tire and wheel damage to the vehicle. Plaintiff stated, [t]he pot hole is so deep you can see rebar in the hole. Plaintiff submitted photographs depicting the damage-causing pothole. The roadway defect depicted is massive. {¶ 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. Plaintiff filed this complaint seeking to recover $598.86, the total cost of automotive repair incurred resulting from the April 13, 2008 incident. 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 damage-causing pothole prior to plaintiff s property damage occurrence. Defendant denied receiving any previous calls or complaints regarding the particular pothole, which DOT located near milepost 13.68 on State Route 7 in Jefferson County. Defendant asserted plaintiff did not produce any evidence to establish the length of time the pothole was present on the roadway before 1:30 a.m. on April 13, 2008. Defendant suggested it is likely the pothole existed for only a short time before the incident. {¶ 4} 4) Defendant contended plaintiff failed to prove her damage was proximately caused by negligent maintenance on the part of DOT. Defendant explained the DOT Jefferson County Manager inspects all state roadways within the county on a routine basis, at least two times a month. Apparently no potholes were discovered near milepost 13.68 on State Route 7 the last time that specific section of roadway was inspected prior to April 13, 2008. DOT records show pothole repairs were conducted in the vicinity of plaintiff s damage occurrence on December 31, 2007, February 14, 2008, and February 21, 2008. 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 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. {¶ 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 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 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 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 TAMARA DULANEY Plaintiff v. OHIO DEPT. OF TRANSPORTATION Defendant Case No. 2008-06008-AD Deputy Clerk Daniel R. Borchert 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. ________________________________ DANIEL R. BORCHERT Deputy Clerk Entry cc: Tamara Dulaney 226 Alfred Drive Wintersville, Ohio 43953 RDK/laa 9/11 Filed 9/26/08 Sent to S.C. reporter 12/3/08 James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223
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