2005-Ohio-4641
No. 2005-06121-AD.Court of Claims of Ohio.
August 24, 2005.
Anthony J. Cirigliano, 38419 Country Meadow Way, North Ridgeville, Ohio 44039, 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 February 4, 2005, at approximately 2:45 p.m., plaintiff, Anthony J. Cirigliano, was traveling south on Interstate 77 near milepost 4.79 in Cuyahoga County, when his automobile struck debris laying on the roadway. The roadway debris, described by plaintiff as “a very large piece of asphalt,” caused substantial damage to plaintiff’s vehicle.
{¶ 2} 2) Consequently, plaintiff filed this complaint seeking to recover $2,478.45, the entire cost of automotive repair resulting from the February 4, 2005, incident. Plaintiff contended his property damage was proximately caused by negligence on the part of defendant, Department of Transportation (“DOT”), in failing to maintain the roadway. The filing fee was paid.
{¶ 3} 3) Defendant denied liability in this matter based on the contention that DOT did not receive adequate notice of the damage causing debris condition. DOT’s records show a call was received at about 2:44 p.m. on February 4, 2005, regarding asphalt debris on Interstate 77 southbound. The report received concerned a vehicle accident caused by asphalt debris. DOT personnel were dispatched to the scene and the asphalt debris was removed. Defendant suggested the asphalt debris condition “existed for only a relatively short amount of time before plaintiff’s incident.” Defendant asserted plaintiff has failed to offer sufficient evidence to prove DOT had requisite notice of the damage-causing debris or that DOT negligently maintained the particular roadway area.
{¶ 4} 4) Plaintiff stated, in his response to defendant’s investigation report, “[w]hile at the scene and shortly after the incident, I was approached by an ODOT person who indicated to me they had been notified much earlier of the chunk of pavement in the highway.” Plaintiff did not submit any statements from DOT personnel concerning prior notice of asphalt debris on the roadway. Plaintiff did submit an incident report of his property damage event which recorded the date and time of this event occurring on February 4, 2005, before 2:46 p.m. The incident report noted plaintiff’s vehicle struck a large piece of asphalt which damaged the tire and rim of the vehicle. The damage-causing asphalt debris was described as a piece of deteriorated roadway pavement material. The incident report also noted DOT personnel were in the area, assisted plaintiff with changing his tire, and cleared the asphalt debris from the roadway.
CONCLUSIONS OF LAW {¶ 5} Defendant has the duty to maintain its highway in a reasonably 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.
{¶ 6} In order to recover in any suit involving injury proximately caused by roadway conditions including debris, plaintiff must prove either: 1) defendant had actual or constructive notice of the debris 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.
{¶ 7} 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.
{¶ 8} Plaintiff has not produced any evidence to indicate the length of time the debris condition was present on the roadway prior to the incident forming the basis of this claim. No evidence has been submitted to show defendant had requisite actual notice of the debris to invoke liability. Additionally, 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 debris appeared on the roadway Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. There is no indication defendant had constructive notice of the debris.
{¶ 9} Finally, plaintiff has not produced any evidence to infer defendant, in a general sense, maintains its highways negligently or that defendant’s acts caused the defective condition. Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD. Therefore, defendant is not liable for any damage plaintiff may have suffered from the roadway debris.
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. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.