Case No. 2002-10879-AD.Court of Claims of Ohio.
Decided August 28, 2003.
Jane B. Dugan, Pro se, plaintiff.
Gordon Proctor, Director, Department of Transportation, for defendant.
MEMORANDUM DECISION.
DANIEL R. BORCHERT, Deputy Clerk.
FINDINGS OF FACT
{¶ 1} 1) On July 31, 2002, plaintiff, Jane B. Dugan was traveling on U.S. Route 50, between Terrace Park and Mariemont in Hamilton County, when her automobile struck a pothole in the traveled portion of the roadway. The pothole caused substantial damage to plaintiff’s vehicle.
{¶ 2} 2) Plaintiff filed this complaint seeking to recover $1,649.63, the cost incurred 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) On April 11, 2003, plaintiff filed a response to defendant’s investigation report and two sworn witness statements from Newton police officer, Spencer Bischoff and Upton Stephen Navey. Both witnesses indicate that the pothole plaintiff struck had been there for a “considerable amount of time” without being repaired.
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) However, the evidence reveals that police officer, Spencer Bischoff, stated the pothole had been on the traveled portion of the roadway for a considerable amount of time and had not been repaired. This evidence is sufficient to establish constructive notice. Guiher v. Jackson (1978), 78-0126-AD.
{¶ 10} 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 $1,674.63, 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.