Case No. 2003-05763-AD.Court of Claims of Ohio.
Decided August 28, 2003.
James B. Drew, Pro se, plaintiff.
Gordon Proctor, Director, Department of Transportation, for defendant.
MEMORANDUM DECISION.
DANIEL R. BORCHERT, Deputy Clerk.
FINDINGS OF FACT
{¶ 1} 1) On April 29, 2003, plaintiff, James B. Drew, was traveling on an entrance ramp to Interstate 75 between mileposts 16.42 and 16.97 in Hamilton County, when his motorcycle struck a pothole. The pothole caused wheel and tire damage to plaintiff’s vehicle.
{¶ 2} 2) Plaintiff filed this complaint seeking to recover $828.71, the cost of a replacement tire and wheel. Plaintiff asserted he sustained these damages as a result of negligence on the part of defendant, Department of Transportation, in maintaining the roadway. Plaintiff submitted the filing fee with the complaint.
{¶ 3} 3) Defendant has denied liability based on the fact it had no knowledge the pothole existed.
{¶ 4} 4) On July 21, 2003, plaintiff submitted a response to defendant’s investigation report. However, plaintiff has not presented any evidence to indicate the length of time the pothole was on the roadway prior to his 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, 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.