2005-Ohio-643
No. 2004-09690-AD.Court of Claims of Ohio.
February 17, 2005.
Erik Brown, 417 4th Street N.W., New Philadelphia, Ohio 44663, Plaintiff, Pro se.
Gordon Proctor, Director, Department of Transportation, 1980 West Broad Street, Columbus, Ohio 43223, for Defendant.
MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On June 18, 2004, at approximately 4:15 a.m., plaintiff, Erik Brown, was traveling west on The Trenton Avenue Connector in Tuscarawas County when his motorcycle hit a deep pothole causing substantial damage to the vehicle. Plaintiff related the pothole his motorcycle struck was located just past the limits of Uhrichsville, Ohio approaching the U.S. Route 36 on ramp.
{¶ 2} 2) Plaintiff filed this complaint seeking to recover $793.28, the total cost of repairing his motorcycle resulting from striking the pothole in the traveled portion of the roadway. Plaintiff also requested reimbursement of the $25.00 filing fee. Plaintiff contended he incurred these expenses as a proximate cause of negligence on the part of defendant, Department of Transportation (“DOT”), in failing to properly maintain the roadway. The requisite material filing fee was paid.
{¶ 3} 3) Defendant denied liability based on the fact it professed to have no knowledge of the damage-causing pothole prior to plaintiff’s incident. Defendant suggested the pothole plaintiff’s motorcycle struck probably existed “for only a relatively short amount of time before plaintiff’s incident.” Defendant asserted
{¶ 4} DOT personnel conduct roadway inspections of all roadways in Tuscarawas County at least one or more times a month. Defendant’s records show no telephone complaints were received about potholes in the vicinity of The Trenton Avenue Connector at any time between January 18, 2004 and June 18, 2004. DOT maintenance records show three pothole patching operations were needed in the vicinity of plaintiff’s roadway incident during the four-month period preceding the June 18, 2004, property damage event. No pothole repairs were made in the area between April 19, 2004, and June 18, 2004. Defendant stated if any roadway defects were discovered, “they would have been promptly scheduled for repair.”
{¶ 5} 4) On January 4, 2005, plaintiff filed a response to defendant’s investigation report. Plaintiff related defendant should have known about numerous potholes in the traveled portion of the roadway on The Trenton Avenue Connector. Plaintiff noted many potholes had existed on this roadway since the winter months of 2004 and these pothole defects were finally corrected on June 29, 2004, when the roadway was resurfaced. Plaintiff submitted a document signed by thirty-seven area residents who all acknowledged significant potholes were present in the westbound lane of The Trenton Avenue Connector from January and February, 2004 until June 29, 2004, when roadway repaving occurred.
CONCLUSIONS OF LAW {¶ 6} 1) Defendant has the duty to maintain its highway in a reasonable safe condition for the motoring public. Knickel v. Ohio Department of Transportation (1976), 49 Ohio App. 2d 335. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723.
{¶ 7} 2) In order to prove a breach of duty to maintain the highways, plaintiff must prove, by a preponderance of the evidence, that defendant had actual or constructive notice of the precise condition or defect alleged to have caused the accident. McClellan v. ODOT (1986), 34 Ohio App. 3d 247. Defendant is only liable for roadway conditions of which it has notice, but fails to reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1. 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 developed Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262.
{¶ 8} 3) In order for there to be constructive notice, plaintiff must show sufficient time has elapsed after the dangerous condition appears, so that under the circumstances, defendant should have acquired knowledge of its existence. Guiher v. Jackson (1978), 78-0126-AD. Size of the defect is insufficient to show notice or duration of existence. O’Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d 297. “A finding of constructive notice is a determination the court must make on the facts of each case not simply by applying a pre-set-time standard for the discovery of certain road hazards.” Bussard, supra, at4. “Obviously, the requisite length of time sufficient to constitute constructive notice varies with each specific situation.” Danko v. Ohio Dept. of Transp.
(Feb. 4, 1993), Franklin App. No. 92AP-1183.
{¶ 9} 4) 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. In the instant claim, sufficient evidence has been offered by plaintiff to prove constructive notice, negligent maintenance and resulting liability. Sufficient time had elapsed for defendant to have discovered the hazard presented by the pothole. Defendant is therefore liable to plaintiff for his repair costs associated with the damage caused by the pothole, plus filing fees, which may be reimbursed as compensable damages pursuant to Bailey v. Ohio Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19.
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 plaintiff in the amount of $818.28, which includes the filing fee. Court costs are assessed against defendant. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.