Hafer v. Ohio Dept. of Transp.

[Cite as Hafer v. Ohio Dept. of Transp., 2011-Ohio-5540.]
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
BRUCE A. HAFER, Case No. 2011-03952-AD
Plaintiff,
v. Acting Clerk Daniel R. Borchert
OHIO DEPT. OF TRANSPORTATION,
Defendant. MEMORANDUM DECISION
{¶ 1} Plaintiff, Bruce Hafer, filed this action against defendant, Department of
Transportation (ODOT), contending that his vehicle was damaged on March 6, 2011, at
approximately 8:00 p.m. as a proximate result of negligence on the part of ODOT in
maintaining a hazardous condition on Interstate 71 South in Franklin County.
Specifically, plaintiff asserted that his left front wheel, tire, and tie rod end were
damaged as a result of striking a pothole which he stated was located “on the entrance
ramp to 270E.” In his complaint, plaintiff requested damage recovery of $501.71, which
represents $500.00 for his insurance coverage deductible and other related repair
expenses. The $25.00 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 advised that no complaints of a pothole were received at
the location on Interstate 71 described by plaintiff which “is near county milepost 10.48
or state milepost 101.55 on I-71 in Franklin County.” Defendant contended that plaintiff
did not produce any evidence to establish the length of time the pothole at milepost
101.55 on Interstate 71 existed prior to his March 5, 2011 damage occurrence.
{¶ 3} Furthermore, defendant contended that plaintiff failed to offer evidence to
prove that ODOT negligently maintained the roadway. Defendant asserted that plaintiff
has not shown his property damage was attributable to conduct on the part of ODOT
personnel. Defendant explained that the ODOT “Franklin County Manager inspects all
state roadways within the county at least two times a month.” Apparently, no potholes
were discovered at milepost 101.55 on Interstate 71 the last time that particular section
of roadway was inspected prior to March 5, 2011. The claim file is devoid of any
inspection record. Defendant did submit a copy of the “Maintenance History” for
Interstate 71 in Franklin County covering the dates from October 22, 2010, to March 6,
2011. This record shows that ODOT crews patched potholes in the area including
milepost 101.55 on November 17 and November 29, 2010, and on February 25, 2011.
{¶ 4} On June 1, 2011, plaintiff filed a response arguing that defendant must
have had prior knowledge of the pothole inasmuch as the pothole had been repaired by
March 7, 2011.
{¶ 5} 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. 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.
{¶ 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} 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. Despite the arguments raised by plaintiff in his response, there is
no evidence that defendant had actual notice of the pothole. Therefore, for the court to
find liability on a notice theory, evidence of constructive notice of the pothole must be
presented.
{¶ 8} “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of
Fahle (1950), 90 Ohio App. 195, 197-198, 47 O.O. 231, 105 N.E. 2d 429. “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. No. 92AP-1183. In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, 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; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
{¶ 9} 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 pothole
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458. No evidence was presented to establish the time that the
particular pothole was present. 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. Plaintiff has failed to prove that defendant had constructive
notice of the pothole. 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 that plaintiff may have suffered from
the roadway defect.
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
BRUCE A. HAFER, Case No. 2011-03952-AD
Plaintiff,
v. Acting Clerk Daniel R. Borchert
OHIO DEPT. OF TRANSPORTATION,
Defendant. ENTRY OF ADMINISTRATIVE
DETERMINATION
{¶ 10} 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:
Bruce A. Hafer Jerry Wray, Director
546 Morrison Drive Department of Transportation
Ashville, Ohio 43103 1980 West Broad Street
Columbus, Ohio 43223
6/8
Filed 7/19/11
Sent to S.C. reporter 10/27/11