Henderson v. Ohio Dept. of Transp. , 2011 Ohio 6963 ( 2011 )


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  • [Cite as Henderson v. Ohio Dept. of Transp., 
    2011-Ohio-6963
    .]
    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
    MEGHAN J. HENDERSON,
    Plaintiff,
    v.
    OHIO DEPARTMENT OF TRANSPORTATION,
    Defendant.
    Case No. 2011-07583-AD
    Deputy Clerk Daniel R. Borchert
    MEMORANDUM DECISION
    FINDINGS OF FACT
    {¶1}    On April 15, 2011, at approximately 3:45 p.m., plaintiff, Meghan
    Henderson, was traveling west on Interstate 270 when her automobile struck a pothole
    near State Route 315, causing damage to the right front rim.
    {¶2}    Plaintiff contends her property damage 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
    $154.79, the cost of associated repair expenses. The filing fee was paid.
    {¶3}    Defendant determined that plaintiff’s incident occurred at milepost 22.94
    on I-270 in Franklin County. Defendant denied liability based on the contention that no
    DOT personnel had any knowledge of the particular damage-causing pothole prior to
    plaintiff’s April 15, 2011 incident. Defendant related that, “[t]his section of roadway has
    an average daily traffic count” of over 140,000 vehicles.        Defendant asserted           that
    plaintiff did not offer any evidence to establish the length of time that the pothole existed
    on I-270 prior to her incident. Defendant suggests, “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.”
    {¶4}     Furthermore, defendant asserts plaintiff has not produced evidence to
    show DOT negligently maintained the roadway.            Defendant explains that the DOT
    Franklin 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 at milepost 22.94 on Interstate 270 the last time this roadway
    was inspected prior to April 15, 2011. Defendant’s records show five pothole patching
    operations were conducted on Interstate 270 in the same location as plaintiff’s incident
    in the six months prior to plaintiff’s damage-causing event. Defendant maintains that if
    “ODOT personnel had detected any defects they would have been promptly scheduled
    for repair.”
    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 DOT 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 damage-
    causing 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
    MEGHAN J. HENDERSON,
    Plaintiff,
    v.
    OHIO DEPARTMENT OF TRANSPORTATION,
    Defendant.
    Case No. 2011-07583-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:
    Meghan J. Henderson                               Jerry Wray, Director
    1354 Bunker Hill Blvd.                            Department of Transportation
    Apt. C                                            1980 West Broad Street
    Columbus, Ohio 43220                              Columbus, Ohio 43223
    9/6
    Filed 9/13/11
    Sent to S.C. reporter 1/27/12
    

Document Info

Docket Number: 2011-07583-AD

Citation Numbers: 2011 Ohio 6963

Judges: Borchert

Filed Date: 9/13/2011

Precedential Status: Precedential

Modified Date: 3/3/2016