[Cite as Wilburn v. Ohio Dept. of Transp., 2016-Ohio-796.]



ANDREW WILBURN                                         Case No. 2015-00752-AD

       Plaintiff                                       Clerk Mark H. Reed

       v.
                                                       MEMORANDUM DECISION
OHIO DEPARTMENT OF
TRANSPORTATION

       Defendant



        {¶1} Plaintiff Andrew Wilburn (hereinafter “plaintiff”) filed this claim on August 25,
2015 to recover damages which occurred when his 2006 Ford Fusion struck a pothole
on August 8, 2015 while he was traveling on US 23 in Delaware County, Ohio. The
pothole struck by plaintiff was actually located on the berm or shoulder of US 23 at
approximately mile marker 15.0. This road is a public road maintained by the Ohio
Department of Transportation (hereinafter “ODOT”).                  Plaintiff’s vehicle sustained
damages in the amount of $529.47. Plaintiff maintains a collision insurance deductible
of $500.00.
        {¶2} In order to recover on a claim for roadway damages against ODOT, Ohio
law requires that a motorist/plaintiff prove all of the following:
        {¶3} That the plaintiff’s motor vehicle received damages as a result of coming
into contact with a dangerous condition on a road maintained by ODOT.
        {¶4} That ODOT knew or should have known about the dangerous road
condition.
        {¶5} That ODOT, armed with this knowledge, failed to repair or remedy the
dangerous condition in a reasonable time.
        {¶6} In this claim, the Court finds that the plaintiff did prove that his vehicle
received damages and that those damages occurred as a result of the plaintiff’s vehicle
coming into contact with a dangerous condition on a road maintained by ODOT.
Case No. 2015-00752-AD                      -2-              MEMORANDUM DECISION
       {¶7} The next element that a plaintiff must prove to succeed on a claim such as
this is to show that ODOT knew or should have known about this dangerous condition.
Based on the evidence presented, the Court is unable to find that ODOT had actual
knowledge of the dangerous condition.
       {¶8} In the Investigation Report filed November 20, 2015, ODOT indicated that
the location of the incident was on US 23, at mile marker 15.00 in Delaware County.
This section of the roadway on US 23 has an average daily traffic count of between
21,240 and 27,530 vehicles. Despite this volume of traffic, ODOT had received no
notice of a pothole on this section of the roadway prior to plaintiff’s incident. Thus, the
Court is unable to find that ODOT knew about the pothole.
       {¶9} However, what is critical in this matter is that the pothole struck by the
plaintiff was located on the berm and not on the traveled portion of US 23.
       {¶10} The Supreme Court of Ohio has consistently held that ODOT is not liable
when a driver encounters a hazard off the traveled portion of the road. See Turner v.
Ohio Bell, 118 Ohio St. 3d 215, 2008-Ohio-2010. ODOT may only be liable for a hazard
off the traveled portion of the roadway, when the condition creates a hazard on the
traveled portion of the roadway. See Steele v. Ohio Dept. of Transp., 162 Ohio App. 3d
30, 2005-Ohio-3276, Harris v. Ohio Dept. of Transp., 83 Ohio App. 3d 125, 614 N.E. 2d
779 (10th Dist. 1992). Therefore, even if ODOT failed to repair a hazard on the shoulder
of US 23, plaintiff’s vehicle would not have been damaged had he stayed on the
traveled portion of the road. Thus the Court need not determine whether or not ODOT
knew or should have known about the road conditions existing on the shoulder of US 23
on August 8, 2015.
       {¶11} Based on the facts of the case and prevailing law in Ohio as set out by the
Ohio Supreme Court, plaintiff’s claim must fail.


ANDREW WILBURN                               Case No. 2015-00752-AD

      Plaintiff                              Clerk Mark H. Reed
Case No. 2015-00752-AD                       -3-              MEMORANDUM DECISION


         v.
                                              ENTRY OF ADMINISTRATIVE
OHIO DEPARTMENT OF                            DETERMINATION
TRANSPORTATION

         Defendant

         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 the defendant. Court costs shall be absorbed by the Court.




                                               MARK H. REED
                                               Clerk
Entry cc:


Andrew Wilburn                                 Jerry Wray, Director
221 Dogwood Drive                              Ohio Department of Transportation
Delaware, Ohio 43015                           1980 West Broad Street
                                               Mail Stop 1500
                                               Columbus, Ohio 43223
Filed 1/20/16
Sent to S.C. Reporter 3/2/16
