[Cite as Miller v. Ohio Dept. of Transp., 2012-Ohio-2085.]



                                                         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




DOROTHY JOAN MILLER

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

Case No. 2011-10941-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     On March 18, 2011, at approximately 11:00 a.m., plaintiff, Dorothy Miller,
suffered personal injury while cleaning up litter alongside State Route 103 which is
adjacent to her property. Specifically, plaintiff injured her left hip and scraped her left
elbow when she stepped across a pothole in the roadway and the edge caved in.
Plaintiff submitted photographs depicting the pothole which appears to be eight to ten
inches wide and approximately two inches deep. Plaintiff has implied her injury was
proximately caused by negligence on the part of defendant, Ohio Department of
Transportation       (ODOT),       in   maintaining          a   hazardous   condition     on    SR      103.
Consequently, plaintiff filed this complaint seeking to recover $332.32 for unreimbursed
medical expenses related to her injury, plus $25.00 for reimbursement of the filing fee.
The requisite $25.00 filing fee was paid.
        {¶2}     Defendant located the pothole near milepost 13.0 on SR 103 in Crawford
County. Defendant denied liability and contended that it had no notice of the pothole
prior to plaintiff’s incident. Defendant explained ODOT employees conduct roadway
inspections on all state roadways on a routine basis, “at least one to two times a
month.”   Defendant denied ODOT employees were negligent in regard to roadway
maintenance.
      {¶3}   In order for plaintiff to prevail upon her claim of negligence, she must
prove by a preponderance of the evidence that defendant owed her a duty, that
defendant’s acts or omissions resulted in a breach of 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.
      {¶4}   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.
      {¶5}   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 conditions or defects alleged to have caused the
injury. McClellan v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388. Moreover,
defendant may be held liable for hazardous road conditions only when it has notice but
fails to take reasonable measures to correct such conditions. See Bussard v. Dept. of
Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR 64, 507 N.E. 2d 1179. Upon review of the
evidence, the court finds that plaintiff has failed to prove that defendant had actual or
constructive notice of the pothole. Accordingly, the court finds that defendant did not
breach its duty to maintain the roadway in a reasonably safe condition.
      {¶6}   Moreover, R.C. 4511.50(B) provides that “[w]here a sidewalk is not
available, any pedestrian walking along and upon a highway shall walk only on a
shoulder, as far as practicable from the edge of the roadway.” Although defendant has
a duty to the motoring public, plaintiff failed to prove that defendant owed a duty of care
to pedestrians who cross over the roadway in the manner described in plaintiff’s
complaint.
      {¶7}   Furthermore, plaintiff had a duty to exercise some degree of care for her
own safety while walking. See Lydic v. Lowe’s Cos., Inc., Franklin App. No. 01AP-1432,
2002-Ohio-5001, ¶16. Plaintiff admitted that she saw the roadway defect and attempted
to cross over the pothole while picking up litter along the roadway. The trier of fact finds
that plaintiff failed to use reasonable care for her own safety when she stepped over the
pothole and that plaintiff’s failure to use reasonable care was the proximate cause of her
injuries. See Kemer v. Ohio Dept. of Transp., Franklin App. No. 09AP-248, 2009-Ohio-
5714; Takacs v. Ohio Dept. of Transp., Franklin App. No. 99AP-378. In the present
claim, plaintiff has failed to produce sufficient evidence to establish the hole she
stepped into was not open, obvious, and readily discernible. Consequently, plaintiff's
claim is denied.
                                                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




DOROTHY JOAN MILLER

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

         Case No. 2011-10941-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE 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.



                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Dorothy Joan Miller                               Jerry Wray, Director
4775 State Route 103                              Department of Transportation
New Washington, Ohio 44854                        1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
1/9
Filed 1/27/12
Sent to S.C. reporter 5/10/12
