Cox v. Ohio Dept. of Transp., Dist. 8
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[Cite as Cox v. Ohio Dept. of Transp., Dist. 8, 2009-Ohio-6610.] 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 LARRY D. COX Plaintiff v. OHIO DEPT. OF TRANSPORTATION, DISTR. 8 Defendant Case No. 2009-03711-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On February 7, 2009 at approximately 3:00 p.m., plaintiff, Larry D. Cox, was traveling on the southwest side of the bridge on southbound I-75 that goes over Ohio 123 in Warren County, when his 2000 Ford Explorer struck a large pothole causing tire damage to the vehicle. {¶ 2} 2) Plaintiff asserted the damage to his automobile was proximately caused by negligence on the part of defendant, Department of Transportation ( DOT ), in failing to maintain the roadway. Consequently, plaintiff filed this complaint seeking to recover $234.76, the cost of replacement parts and associated repair expenses for his vehicle. The filing fee was paid. {¶ 3} 3) Defendant denied liability based on the contention that no DOT personnel had any knowledge of the large pothole on the roadway prior to plaintiff s property damage occurrence. Defendant denied receiving any previous complaints about the particular damage-causing pothole, which DOT located at milepost 36.89 on Interstate 75 in Warren County. Defendant asserted plaintiff failed to produce any evidence showing how long the pothole existed prior to the February 7, 2009 incident. Defendant suggested, it is likely the pothole existed for only a short time before the incident. Defendant explained the DOT Warren County Manager inspects all the state roadways within Hamilton County, at least two times a month. Apparently, no potholes were observed at milepost 36.89 on Interstate 75 the last time an inspection was conducted before February 7, 2009, Defendant s records show potholes were patched in the vicinity of plaintiff s incident on August 26, 2008, November 18, 2008, and December 23, 2008. CONCLUSIONS OF LAW {¶ 4} 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. {¶ 5} 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. {¶ 6} Plaintiff has not produced sufficient evidence to indicate the length of time 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 LARRY D. COX Plaintiff v. OHIO DEPT. OF TRANSPORTATION, DISTR. 8 Defendant Case No. 2009-03711-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: Larry D. Cox 6314 Castle Hill Drive Liberty Twp., Ohio 45044-9100 RDK/laa 7/27 Filed 8/6/09 Sent to S.C. reporter 12/11/09 Jolene M. Molitoris, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223
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