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Jewelienne Underwood v. Ohio Dept. of Transportation

July 18, 2011

JEWELIENNE UNDERWOOD
PLAINTIFF
v.
OHIO DEPT. OF TRANSPORTATION
DEFENDANT



Cite as Underwood v. Ohio Dept. of Transp.,

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

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

FINDINGS OF FACT

{¶1} Plaintiff, Jewelienne Underwood, alleges that on January 29, 2011, at approximately 7:40 a.m., she was traveling "from John Scott Highway in Steubenville Ohio to Route 22 east towards West Virginia. At the connection of road beneath the overpass my car fell into a huge pothole. * * * The overpass is Alter Ave & the row of unavoidable potholes were across the length of the road." In her complaint, plaintiff pointed out that there are numerous potholes in the area and that repairs still need to be made. Plaintiff submitted photographs depicting the area where her car was damaged. Upon review, the trier of fact notes the photographs submitted by plaintiff show a massive pavement deterioration that spans the entire width of the right lane of travel. The defect is extensive and shows evidence of chronic failed repair efforts.

{¶2} Plaintiff filed this complaint seeking to recover $725.38, the cost of a replacement tire and related repair expenses resulting from the January 29, 2011 incident. Plaintiff asserted she incurred these damages as a proximate 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 assertion it professed to have no knowledge of the damage-causing pothole prior to plaintiff's January 29, 2011 incident. Defendant denied receiving any calls or complaints before January 29, 2011, about a pothole that DOT located "near milepost 14.93 on US 22 in Jefferson County."

Defendant suggested, "it is likely the pothole existed for only a short time before the incident."

{¶4} Defendant explained DOT employees conduct roadway inspections on all state roadways on a routine basis, "at least two times a month." A review of the maintenance history submitted by defendant shows pothole patching operations were performed at the location of plaintiff's incident on January 18, 2011. Defendant denied DOT employees were negligent in regard to roadway maintenance.

{¶5} Plaintiff filed a response stating that the pictures she submitted document that although the road had been patched multiple times it was not repaired properly or completely. Plaintiff suggested defendant negligently maintained the roadway due to DOT's failure to properly patch recurring potholes.

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, 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.

{ΒΆ7} 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 ...


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