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James R. Bowen Jr v. the Ohio Department of Transportation

July 19, 2011

JAMES R. BOWEN JR., PLAINTIFF,
v.
THE OHIO DEPARTMENT OF TRANSPORTATION, DEFENDANT.



Cite as

Bowen 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

{¶1} On March 5, 2011, at approximately 9:55 p.m., plaintiff's son, Jay Bowen, was involved in an automobile accident while driving plaintiff's, James Bowen, 2001 Oldsmobile Intrigue on State Route 54 in South Vienna, Ohio. Plaintiff recalled that his son stated that, "an unknown vehicle passed him and he struck a large pothole on State Rt. 54. Jay said he then hit the bridge which damaged the car." Plaintiff explained he traveled to the scene, spoke with Officer Sullivan of the South Vienna police department, and took pictures of the pothole. Plaintiff observed damage to the vehicle's hood, front bumper, driver's side fender, and the driver's side tire and rim.

{¶2} Plaintiff has implied defendant, Department of Transportation (DOT), should bear liability for the damage to his car inasmuch as plaintiff's son lost control of the vehicle and careened into the wall only after driving into the pothole. Consequently, plaintiff filed this complaint seeking to recover $2,500.00, the estimated value of the car.

The filing fee was paid.

{¶3} Defendant denied having any knowledge of a pothole on State Route 54 at milepost 5.67 in Clark County prior to plaintiff's incident there. Defendant stated it "has no way of knowing or determining exactly how long the pothole existed in the roadway prior to [plaintiff's son's] incident." Defendant suggested the pothole "existed in that location for only a relatively short amount of time before [plaintiff's son's] incident."

{¶4} In addition, defendant pointed out that the accident report lists this incident as a "hit/skip traffic accident." The officer's report suggests that another driver attempted to pass plaintiff's vehicle, clipped the fender, and caused plaintiff's son to steer the car into a pothole which damaged the driver's side tire. Defendant contended plaintiff failed to prove his property damage was caused by any negligent act or omission on the part of DOT personnel.

{¶5} Plaintiff filed a response essentially reiterating the allegations in the complaint. Plaintiff submitted a series of photographs depicting a large, round pavement defect on the traveled portion of the roadway and abutting the white edgeline. Plaintiff specifically denies that the damage to the car was caused by the actions of another motorist.

{¶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} Evidence in the instant action tends to show plaintiff's damage was caused by an act of an unidentified third party, not DOT. Defendant has denied liability based on the particular premise it had no duty to control the conduct of a third person except in cases where a special relationship exists between defendant and either plaintiff or the person whose conduct needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However, defendant may still bear liability if it can be established some act or omission on the part of DOT was the proximate cause of plaintiff's injury. This court, as trier of fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477.

{¶8} "'If any injury is the natural and probable consequence of a negligent act and it is such as should have been foreseen in the light of all the attending circumstances, the injury is then the proximate result of the negligence. It is not necessary that the defendant should have anticipated the particular injury. It is sufficient that his act is likely to result in an injury to someone. Neff Lumber Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E., 327.'" Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d 155, 160, 451 N.E. 2d 815, quoting Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31, 41 O.O. 117, 90 N.E. 2d 859.

{¶9} 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, 81, 2003-Ohio-2573, ¶ 8 citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio Misc. 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 ...


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