Schaber v. Ohio Dept. of Transp., Dist. 6 , 2011 Ohio 4795 ( 2011 )


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  • [Cite as Schaber v. Ohio Dept. of Transp., Dist. 6, 
    2011-Ohio-4795
    .]
    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
    ROBERT SCHABER
    Plaintiff
    v.
    OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6
    Defendant
    Case No. 2011-02638-AD
    Deputy Clerk Daniel R. Borchert
    MEMORANDUM DECISION
    {¶1}     Plaintiff, Robert Schaber, filed this action against defendant, Ohio
    Department of Transportation (ODOT), contending that his vehicle was damaged as a
    proximate result of negligence on the part of ODOT in maintaining a hazardous
    condition on State Route 4. In his complaint, plaintiff described the particular damage
    event noting that he was traveling northbound on State Route 4 when “I hit a deep,
    chunked up pothole in the road in front of The Blues Creek Golf Course. The pothole
    took up a good portion of my lane and I could not avoid it. After I hit it I heard a loud
    bang, slightly lost control of my car, and heard knocking on the left side.” Plaintiff
    recalled that his described damage incident occurred on January 21, 2011 at
    approximately 3:00 p.m. Plaintiff seeks recovery of damages in the amount of $360.35,
    the stated total amount for a replacement tire and towing costs. 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 incident. Defendant related that plaintiff’s incident occurred on January 21,
    2011, on SR 4. Defendant located plaintiff’s incident “at county milepost 15.20 or state
    milepost 116.87 on SR 4 in Union County.” Defendant denied receiving any prior calls
    or complaints about a pothole or potholes in the vicinity of that location. Defendant
    asserted that plaintiff did not offer any evidence to establish the length of time that any
    potholes existed in the area of his incident on SR 4 prior to January 21, 2011.
    Defendant suggested, “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 “Union 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 January 21, 2011. The claim file is devoid of any
    inspection record. Defendant argued that plaintiff has failed to offer any evidence to
    prove his property damage was attributable to any conduct on the part of ODOT
    personnel.    Defendant stated that, “[a] review of the six-month maintenance history
    [record submitted] reveals that one (1) pothole patching operation was conducted in the
    same location as plaintiff’s incident on December 29, 2010.            Plaintiff did not file a
    response.
    {¶4}   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
    , 
    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 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 conditions or defects 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
    . There is no evidence that defendant had actual notice of the
    pothole on SR 4 prior to January 21, 2011.
    {¶7}    Therefore, to find liability, plaintiff must prove that ODOT had constructive
    notice of the defect.    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 developed. Spires v. Ohio Highway Department (1988), 
    61 Ohio Misc. 2d 262
    , 
    577 N.E. 2d 458
    .
    {¶8}    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.
    {¶9}    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 any 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. Therefore, defendant is not liable for any damage plaintiff may have suffered from
    the pothole.
    {¶10} In the instant claim, plaintiff has failed to introduce sufficient evidence to
    prove that defendant maintained known hazardous roadway conditions. Plaintiff failed
    to prove that his 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
    ROBERT SCHABER
    Plaintiff
    v.
    OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 6
    Defendant
    Case No. 2011-02638-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:
    Robert Schaber                                    Jerry Wray, Director
    1329 Creekview Drive                              Department of Transportation
    Marysville, Ohio 43040                            1980 West Broad Street
    Columbus, Ohio 43223
    SJM/laa
    6/3
    Filed 6/17/11
    Sent to S.C. reporter 9/21/11
    

Document Info

Docket Number: 2011-02638-AD

Citation Numbers: 2011 Ohio 4795

Judges: Borchert

Filed Date: 6/17/2011

Precedential Status: Precedential

Modified Date: 10/30/2014