Bowen v. Ohio Dept. of Transp. , 2011 Ohio 5549 ( 2011 )

[Cite as Bowen v. Ohio Dept. of Transp., 2011-Ohio-5549.]
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
JAMES R. BOWEN JR., Case No. 2011-04088-AD
Plaintiff,
v. Acting Clerk Daniel R. Borchert
THE OHIO DEPARTMENT OF TRANSPORTATION,
Defendant. MEMORANDUM DECISION
{¶ 1} On March 5, 2011, at approximately 9:55 p.m., plaintiff’s son, Jay Bowen,
was involved in an automobile accident while driving plaintiff’s, James Bowen, 2001
Oldsmobile Intrigue on State Route 54 in South Vienna, Ohio. Plaintiff recalled that his
son stated that, “an unknown vehicle passed him and he struck a large pothole on State
Rt. 54. Jay said he then hit the bridge which damaged the car.” Plaintiff explained he
traveled to the scene, spoke with Officer Sullivan of the South Vienna police
department, and took pictures of the pothole. Plaintiff observed damage to the vehicle’s
hood, front bumper, driver’s side fender, and the driver’s side tire and rim.
{¶ 2} Plaintiff has implied defendant, Department of Transportation (DOT),
should bear liability for the damage to his car inasmuch as plaintiff’s son lost control of
the vehicle and careened into the wall only after driving into the pothole. Consequently,
plaintiff filed this complaint seeking to recover $2,500.00, the estimated value of the car.
The filing fee was paid.
{¶ 3} Defendant denied having any knowledge of a pothole on State Route 54
at milepost 5.67 in Clark County prior to plaintiff’s incident there. Defendant stated it
“has no way of knowing or determining exactly how long the pothole existed in the
roadway prior to [plaintiff’s son’s] incident.” Defendant suggested the pothole “existed in
that location for only a relatively short amount of time before [plaintiff’s son’s] incident.”
{¶ 4} In addition, defendant pointed out that the accident report lists this incident
as a “hit/skip traffic accident.” The officer’s report suggests that another driver
attempted to pass plaintiff’s vehicle, clipped the fender, and caused plaintiff’s son to
steer the car into a pothole which damaged the driver’s side tire. Defendant contended
plaintiff failed to prove his property damage was caused by any negligent act or
omission on the part of DOT personnel.
{¶ 5} Plaintiff filed a response essentially reiterating the allegations in the
complaint. Plaintiff submitted a series of photographs depicting a large, round
pavement defect on the traveled portion of the roadway and abutting the white edgeline.
Plaintiff specifically denies that the damage to the car was caused by the actions of
another motorist.
{¶ 6} 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.
{¶ 7} Evidence in the instant action tends to show plaintiff’s damage was
caused by an act of an unidentified third party, not DOT. Defendant has denied liability
based on the particular premise it had no duty to control the conduct of a third person
except in cases where a special relationship exists between defendant and either
plaintiff or the person whose conduct needs to be controlled. Federal Steel & Wire Corp.
v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However, defendant
may still bear liability if it can be established some act or omission on the part of DOT
was the proximate cause of plaintiff’s injury. This court, as trier of fact, determines
questions of proximate causation. Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51, 14
OBR 446, 471 N.E. 2d 477.
{¶ 8} “‘If any injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of the negligence. It is not
necessary that the defendant should have anticipated the particular injury. It is
sufficient that his act is likely to result in an injury to someone. Neff Lumber Co. v. First
National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E., 327.’”
Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d 155, 160, 451 N.E. 2d 815, quoting
Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31, 41 O.O. 117, 90 N.E. 2d 859.
{¶ 9} For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy
Company, Inc. 99 Ohio St. 3d 79, 81, 2003-Ohio-2573, ¶ 8 citing Menifee v. Ohio
Welding Products, Inc. (1984), 15 Ohio Misc. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707.
Plaintiff has the burden of proving, by a preponderance of the evidence, that he suffered
a loss and that this loss was proximately caused by defendant’s negligence. Barnum v.
Ohio State University (1977), 76-0368-AD. 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.
{¶ 10} In order to prove a breach of 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. 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 defective condition developed. Spires
v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. There is
no evidence that defendant had actual notice of the pothole on State Route 54 prior to
the evening of March 5, 2011.
{¶ 11} Therefore, to find liability, plaintiff must prove that ODOT had constructive
notice of the defect. 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 defect 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. “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 that ODOT had constructive notice of the pothole.
{¶ 12} Generally, 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 potholes 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. Plaintiff has not produced sufficient evidence to infer that
defendant, in a general sense, maintains its highways negligently or that defendant’s
acts caused the defective conditions. Herlihy v. Ohio Department of Transportation
(1999), 99-07011-AD.
{¶ 13} Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to plaintiff, or that plaintiff’s injury was
proximately caused by defendant’s negligence. Plaintiff failed to show the damage-
causing pothole at the time of the damage incident was connected to any conduct under
the control of defendant or 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.
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
JAMES R. BOWEN JR., Case No. 2011-04088-AD
Plaintiff,
v. Acting Clerk Daniel R. Borchert
THE OHIO DEPARTMENT OF TRANSPORTATION,
Defendant. 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
Acting Clerk
Entry cc:
James R. Bowen, Jr. Jerry Wray, Director
14 Wildwood Drive Department of Transportation
South Charleston, Ohio 45368 1980 West Broad Street
Columbus, Ohio 43223
6/28
Filed 7/19/11
Sent to S.C. reporter 10/27/11