Carpenter v. Ohio Dept. of Transp., (Ohio 2008)
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Summary
Automobile damage, pothole. No notice. Burden of proof, duty of care. Judgment for defendant.
Summary
Automobile damage, pothole. No notice. Burden of proof, duty of care. Judgment for defendant.
Text
[Cite as Carpenter v. Ohio Dept. of Transp., 2008-Ohio-5783.]
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
DANIEL M. CARPENTER Case No. 2008-04056-AD
Plaintiff Deputy Clerk Daniel R. Borchert
v.
MEMORANDUM DECISION
OHIO DEPARTMENT OF TRANSPORTATION
Defendant
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[Cite as Carpenter v. Ohio Dept. of Transp., 2008-Ohio-5783.]
FINDINGS OF FACT
1) On February 14, 2008, at approximately 11:30 p.m., plaintiff, Daniel M. Carpenter, was traveling on the ramp from Interstate 275 to Interstate 74 when his vehicle struck a pothole in the traveled portion of the roadway, causing tire and rim damage to the vehicle.
2) Plaintiff implied his property damage was proximately caused by negligence on the part of defendant, Department of Transportation ("DOT"), in failing to maintain the roadway free of defects. Plaintiff filed this complaint seeking to recover $283.17, the total cost of automotive replacement parts. The filing fee was paid.
3) Defendant denied liability in this matter based on the contention that no DOT personnel had any knowledge of the pothole prior to plaintiff's property damage event. Defendant denied receiving any previous reports of the damage-causing pothole which DOT located at approximately milepost 24.90 on Interstate 275 in Hamilton County. 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."
4) Furthermore, defendant asserted plaintiff has not produced evidence to show DOT negligently maintained the roadway. Defendant explained that the DOT Hamilton 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 near milepost 24.90 on Interstate 275 the last time this roadway was inspected prior to February 14, 2008. Defendant's records show pothole patching operations were conducted in the particular vicinity on Interstate 275 on January 25, 2008.
5) On July 9, 2008, plaintiff filed a response to the defendant's investigation report. Plaintiff admits he does not know how long the pothole existed prior to him striking it. Plaintiff supplied pictures of the incident site.
CONCLUSIONS OF LAW
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),
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Case No. 2008-04056-AD - 3 - MEMORANDUM DECISION
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.
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.
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.
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.
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.
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Case No. 2008-04056-AD - 4 - MEMORANDUM DECISION
Plaintiff has not shown, by preponderance of the evidence, that defendant failed to discharge a duty owed to him or that his 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
DANIEL M. CARPENTER Case No. 2008-04056-AD
Plaintiff Deputy Clerk Daniel R. Borchert
v.
ENTRY OF ADMINISTRATIVE OHIO DEPARTMENT OF DETERMINATION TRANSPORTATION
Defendant
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[Cite as Carpenter v. Ohio Dept. of Transp., 2008-Ohio-5783.]
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[Cite as Carpenter v. Ohio Dept. of Transp., 2008-Ohio-5783.]
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: Daniel M. Carpenter
James G. Beasley, Director
1026 Pucksinwah Pt. Dr.
Department of Transportation West Harrison, Indiana 47060
1980 West Broad Street
Columbus, Ohio
43223 RDK/laa 7/9 Filed 8/5/08 Sent to S.C. reporter 11/4/
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