Miller v. Ohio Dept. of Transp.

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[Cite as Miller v. Ohio Dept. of Transp., 2009-Ohio-7130.] 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 TESSA MILLER Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2008-11800-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On December 6, 2008, at approximately 2:00 p.m., plaintiff, Tessa Miller, was traveling south on US Route 62 in Holmes County about 2 miles past Killbuck, Ohio, when her automobile struck a pothole causing tire and wheel damage. {¶ 2} 2) Plaintiff implied the damage to her car was proximately caused by negligence on the part of defendant, Department of Transportation (ODOT), in failing to maintain the roadway free of defects. Plaintiff filed this complaint seeking to recover damages in the amount of $261.61, representing the complete expense she incurred for replacement parts. Plaintiff paid the $25.00 filing fee. {¶ 3} 3) Defendant denied liability based on the contention that no ODOT personnel had any knowledge of the particular pothole on the roadway prior to plaintiff s property damage event. Defendant denied receiving any prior calls or complaints about the pothole which ODOT located at milepost 10.71 on US Route 62 in Holmes County. Defendant asserted plaintiff did not offer any evidence to establish the length of time the pothole was on the roadway before 2:00 p.m. on December 6, 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 ODOT negligently maintained the roadway. Defendant explained the ODOT Holmes County Manager inspects all state roadways within the county at least two times a month. Apparently no potholes were discovered near milepost 10.71 on US Route 62 the last time that specific section of roadway was inspected prior to December 6, 2008. The file is devoid of any record of pothole repairs made on US Route 62 in Holmes County although ODOT crews did conduct partial depth repairs on three occasions in July 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 recover in a suit involving damage proximately caused by roadway conditions including potholes, plaintiff must prove that either: 1) defendant had actual or constructive notice of the pothole and failed to respond 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. {¶ 7} To prove a breach of duty by defendant to maintain the highways plaintiff must establish, by a preponderance of the evidence, that ODOT 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. No evidence has shown that defendant had actual notice of the damage-causing pothole. {¶ 8} 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 defective condition (pothole) developed. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. 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. There is no evidence of constructive notice of the pothole. {¶ 9} 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. Therefore, defendant is not liable for any damage plaintiff may have suffered from the pothole. {¶ 10} Plaintiff has not shown, by a preponderance of the evidence, that defendant failed to discharge a duty owed to her or that her property damage was proximately caused by defendant s negligence. Plaintiff failed to show that the damagecausing pothole was connected to any conduct under the control of defendant or that there was 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. 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 TESSA MILLER Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2008-11800-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: Tessa Miller 10977 US Rt. 62 Killbuck, Ohio 44637 RDK/laa 9/29 Filed 10/9/09 Sent to S.C. reporter 2/4/10 Jolene M. Molitoris, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223

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