No. 2003-03116-AD.Court of Claims of Ohio.
May 22, 2003.
MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On or about December 18, 2002 plaintiff, Jenne Bussell was traveling on the Beechmont Road exit on Interstate 275 So. in Clermont County, when her automobile struck a pothole at milepost 12.89 in the traveled portion of the roadway. The pothole caused tire, rim, and hubcap damage to plaintiff’s vehicle.
{¶ 2} 2) Plaintiff filed this complaint seeking to recover $350.00, the approximate cost for automotive repair. Plaintiff asserted she sustained these damages as a result of negligence on the part of defendant, Department of Transportation, in maintaining the roadway. Plaintiff has also filed a claim for filing fee reimbursement.
{¶ 3} 3) Defendant has denied liability based on the fact it had no knowledge the pothole existed.
{¶ 4} 4) Plaintiff has not presented any evidence to indicate the length of time the pothole was on the roadway prior to her property-damage occurrence.
CONCLUSIONS OF LAW {¶ 5} 1) Defendant has the duty to keep the roads in a safe, drivable condition. Amica Mutual v. Dept. of Transportation (1982), 81-02289-AD.
{¶ 6} 2) Defendant must exercise due diligence in the maintenance and repair of highways. Hennessey v. State of Ohio Highway Dept. (1985), 85-02071-AD.
{¶ 7} 3) In order to recover on a claim of this type, plaintiff must prove either: 1) defendant had actual or constructive notice of the defect (pothole) and failed to respond in a reasonable time or responded in a negligent manner, or 2) that defendant, in a general sense, maintains its highways negligently. Denis v. Department of Transportation (1976), 75-0287-AD.
{¶ 8} 4) There is no evidence defendant had actual notice of the pothole.
{¶ 9} 5) The trier of fact is precluded from making an inference of defendant’s constructive notice, unless evidence is presented in respect to the time the defective condition (pothole) developed. Spires v. Highway Department (1988), 61 Ohio Misc.2d 262.
{¶ 10} 6) In order for there to be constructive notice, plaintiff must show sufficient time has elapsed after the dangerous condition (pothole) appears, so that under the circumstances, defendant should have acquired knowledge of its existence. Guiher v. Jackson (1978), 78-0126-AD.
{¶ 11} 7) No evidence has shown defendant had constructive notice of the damage-causing pothole.
{¶ 12} 8) Furthermore, plaintiff has failed to show defendant negligently maintained the roadway.
{¶ 13} Having considered all the evidence in the claim file and adopting the memorandum decision concurrently herewith;
{¶ 14} IT IS ORDERED THAT:
{¶ 15} 1) Plaintiff’s claim is DENIED and judgment is rendered in favor of defendant;
{¶ 16} 2) The court shall absorb the court costs of this case in excess of the filing fee.
DANIEL R. BORCHERT Deputy Clerk
Jenne Bussell, Plaintiff, Pro se.
Gordon Proctor, Director, For Defendant.