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Michelle Underwood v. Ohio Department of Transportation

July 19, 2011

MICHELLE UNDERWOOD, PLAINTIFF,
v.
OHIO DEPARTMENT 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} In her complaint, plaintiff, Michelle Underwood, alleges that on January 25, 2011, at approximately 7:40 a.m., she was traveling south on Interstate 75, "between Piqua & Troy" when her automobile struck a pothole in the roadway. The pothole caused tire and rim damage to plaintiff's vehicle.

{¶2} Plaintiff filed this complaint seeking to recover $551.41, the cost of a replacement tire and rim as well as related repair expenses resulting from the January 25, 2011 incident. Plaintiff implied 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 located the pothole at milepost 78.50 on I-75 in Miami County.

Defendant denied liability based on the contention that no ODOT personnel had any knowledge of the particular damage-causing pothole prior to plaintiff's January 25, 2011 described occurrence. Defendant argued plaintiff did not provide any evidence to establish the length of time the particular pothole was present on the roadway prior to January 25, 2011. 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 contended plaintiff did not offer any evidence to prove the roadway was negligently maintained. Defendant related the ODOT "Miami 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 in the vicinity of plaintiff's incident on I-75 the last time that section of roadway was inspected prior to January 25, 2011. Defendant's maintenance records show potholes were patched in the specific location of plaintiff's incident on December 26, 2010 and January 25, 2011.*fn1 Defendant denied DOT employees were negligent in regard to roadway maintenance.

{¶5} Plaintiff did not file a response.

CONCLUSIONS OF LAW

{¶6} For plaintiff to prevail on a claim of negligence, she must prove, by a preponderance of the evidence, that defendant owed her a duty, that it breached that duty, and that the breach proximately caused her 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. 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.

{ΒΆ7} 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, ...


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