Paplaczyk v. Dept. of Transp.
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[Cite as Paplaczyk v. Dept. of Transp., 2009-Ohio-5105.] 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 BARBARA L. PAPLACZYK Plaintiff v. DEPARTMENT OF TRANSPORTATION Defendant Case No. 2008-09554-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On December 9, 2007, at approximately 6:53 p.m., plaintiff, Barbara L. Paplaczyk, was traveling east on State Route 435 at milepost 1 in Fayette County, when her 2003 Hyundai Elantra struck a pothole causing tire and 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. Plaintiff filed this complaint seeking to recover $690.53, the total cost of automotive repair incurred resulting from the December 9, 2007 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 1.00 on State Route 435 in Fayette County. Defendant asserted plaintiff did not produce any evidence to establish the length of time the pothole was present on the roadway before 6:53 p.m. on December 9, 2007. 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 Fayette 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 1.00 on State Route 435 the last time that specific section of roadway was inspected prior to December 9, 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 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 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, 587 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 BARBARA L. PAPLACZYK Plaintiff v. DEPARTMENT OF TRANSPORTATION Defendant Case No. 2008-09554-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: Barbara L. Paplaczyk 719 Alta View Court Jolene M. Molitoris, Director Department of Transportation Worthington, Ohio 43085 RDK/laa 5/14 Filed 5/29/09 Sent to S.C. reporter 9/29/09 1980 West Broad Street Columbus, Ohio 43223
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