Opinion
No. 2005-07721-AD.
September 21, 2005.
Ronnie L. Ritter, Jr., 520 Milan Avenue Lot 236, Norwalk, Ohio 44857, Plaintiff, Pro se.
Gordon Proctor, Director, Department of Transportation, 1980 West Broad Street, Columbus, Ohio 43223, for Defendant.
MEMORANDUM DECISION FINDINGS OF FACT
{¶ 1} On June 15, 2005, at approximately 2:02 p.m., plaintiff, Ronnie L. Ritter, Jr., was traveling east on State Route 18, "about a mile before the Lorain/Huron County line," when his automobile struck a large pothole causing tire and rim damage to the vehicle.
{¶ 2} Plaintiff filed this complaint seeking to recover $350.00, his total cost of automotive repair which plaintiff contends he incurred as a result of negligence on the part of defendant, Department of Transportation ("DOT"), in maintaining the roadway. The $25.00 filing fee was paid.
{¶ 3} Defendant denied liability based on the fact it professed to have no knowledge of the damage-causing pothole prior to plaintiff's incident. Defendant denied receiving any prior complaints about the pothole which DOT located at "milepost 1 on SR 18 in Lorain County."
{¶ 4} Plaintiff did not submit any evidence to establish the length of time the pothole existed prior to the June 15, 2005, property damage event.
{¶ 5} Furthermore, defendant explained a DOT employee conducts roadway inspections of State Route 18 at least two times a month. Defendant contended, plaintiff did not produce sufficient evidence to prove DOT breached any duty of care owed to the traveling public in respect to roadway maintenance.
CONCLUSIONS OF LAW
{¶ 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. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723.
{¶ 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 v. ODOT (1986), 34 Ohio App. 3d 247. 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.
{¶ 8} There is no evidence defendant had actual notice of the damage-causing pothole.
{¶ 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 the defective condition (pothole) developed. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262.
{¶ 10} 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 297.
{¶ 11} In order for there to be constructive notice, plaintiff must show sufficient time has elapsed after the dangerous condition (pothole) appears, so that under the circumstances, defendant should have acquired knowledge of the existence of the defects. Guiher v. Jackson (1978), 78-0126-AD.
{¶ 12} No evidence has shown defendant had constructive notice of the pothole.
{¶ 13} Furthermore, plaintiff has failed to show defendant negligently maintained the roadway.
ENTRY OF ADMINISTRATIVE TRANSPORTATION 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. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.