Malcuit v. Ohio Dept. of Transp., Dist. 11 ( 2010 )

[Cite as Malcuit v. Ohio Dept. of Transp., Dist. 11, 2010-Ohio-6662.]
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
GWENEVERE MALCUIT
Plaintiff
v.
OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 11
Defendant
Case No. 2010-05951-AD
Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION
{¶ 1} Plaintiff, Gwenevere Malcuit, filed this action against defendant,
Department of Transportation (ODOT), contending her 2003 Volkswagen Beetle Turbo
was damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on Interstate 77 in Tuscarawas County. Specifically, plaintiff
related her car was damaged when the vehicle struck a pothole while “traveling on 77-S
between Strasburg and Dover exit.” According to plaintiff, the impact of striking the
pothole caused the right front air bag on her car to deploy “ruining the passenger side
seat” and irreparably damaging the left front wheel and tire. Plaintiff recalled the
described damage incident occurred on March 4, 2010 at approximately 5:30 a.m.
Plaintiff filed this complaint seeking damages in the amount of $500.00, her insurance
coverage deductible for automotive repair. The filing fee was paid.
{¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular damage-causing pothole prior to
plaintiff’s March 4, 2010 described occurrence. Defendant located the pothole “at state
milepost 84.4 or county milepost 24.49 on I-77 in Tuscarawas County.” Defendant
explained that ODOT records show no prior reports of a pothole at that location despite
the fact that the particular “section of highway has an average daily traffic count of
between 30,900 and 41,370.” Defendant argued that plaintiff did not provide any
evidence to establish the length of time the particular pothole at milemarker 84.4 was
present on the roadway prior to March 4, 2010. Defendant suggested that, “it is more
likely than not that the pothole existed in that location for only a relatively short amount
of time before plaintiff’s incident.”
{¶ 3} Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Tuscarawas County Manager conducts roadway inspections on all state
roadways within the county on a routine basis, at least one to two times a month.”
Apparently, no potholes were discovered in the vicinity of plaintiff’s incident the last time
that section of roadway was inspected prior to March 4, 2010. The claim file is devoid
of any inspection record. Defendant argued that plaintiff has failed to offer any evidence
to prove that her property damage was attributable to any conduct on the part of ODOT
personnel. Defendant asserted that, “the roadway was in relatively good condition at
the time of plaintiff’s incident.” Defendant stated that, “[a] review of the six-month
maintenance history (record submitted) for the area in question reveals that no (0)
pothole patching operations were conducted in the southbound direction of I-77.”
Defendant noted, “that if ODOT personnel had detected any defects they would have
been promptly scheduled for repair.”
{¶ 4} For plaintiff to prevail on a claim of negligence, she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her injuries. Armstrong v. Best Buy
Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding
Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. However,
“[i]t is the duty of a party on whom the burden of proof rests to produce evidence which
furnishes a reasonable basis for sustaining his claim. If the evidence so produced
furnishes only a basis for a choice among different possibilities as to any issue in the
case, he fails to sustain such burden.” Paragraph three of the syllabus in Steven v.
Indus. Comm. (1945), 145 Ohio St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and
followed.
{¶ 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 for there to be constructive notice, plaintiff must show that
sufficient time has elapsed after the dangerous condition appears, so that under the
circumstances defendant should have acquired knowledge of its existence. Guiher v.
Dept. of Transportation (1978), 78-0126-AD . Size of the defects are 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. “A finding of constructive notice is a determination
the court must make on the facts of each case not simply by applying a pre-set time
standard for the discovery of certain road hazards.” Bussard, at 4. “Obviously, the
requisite length of time sufficient to constitute constructive notice varies with each
specific situation.” Danko v. Ohio Dept. of Transp. (Feb. 4, 1993), Franklin App. 92AP-
1183. No evidence has shown ODOT had constructive notice of the pothole.
{¶ 7} Generally, in order to recover in a suit involving damage proximately
caused by roadway conditions including pothole, 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. The fact that defendant’s “Maintenance History” reflects no
pothole repairs were made in the vicinity of plaintiff’s incident during the six-month
period before that incident does not prove negligent maintenance of the roadway on the
part of ODOT. 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.
{¶ 8} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained a known hazardous roadway condition. Plaintiff failed
to prove her property damage was connected to any conduct under the control of
defendant, or that defendant was negligent in maintaining the roadway area, or that
there was any actionable 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.
Consequently, plaintiff’s claim is denied.
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
GWENEVERE MALCUIT
Plaintiff
v.
OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 11
Defendant
Case No. 2010-05951-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:
Gwenevere Malcuit Jolene M. Molitoris, Director
11431 Manchester Avenue S.W. Department of Transportation
Beach City, Ohio 44608 1980 West Broad Street
Columbus, Ohio 43223
RDK/laa
9/14
Filed 11/10/10
Sent to S.C. reporter 2/11/11