2004-Ohio-4826

Kara Yoder, Plaintiff, v. Ohio Department of Transportation, Defendant.

Case No. 2004-05309-AD.Court of Claims of Ohio.
Filed August 19, 2004.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Kara Yoder, 9832 Eckert Road, Baltic, Ohio 43804, Plaintiff, Pro se.

Gordon Proctor, Director, Department of Transportation, 1980 West Broad Street, Columbus, Ohio 43223, for Defendant.

MEMORANDUM DECISION FINDINGS OF FACT ENTRY OF ADMINISTRATIVE DETERMINATION {¶ 1} 1) On February 20, 2004, plaintiff, Kara Yoder, was traveling on State Route 557 near milepost 6.87 in Holmes County, when her automobile struck a large pothole causing damage to the vehicle.

{¶ 2} 2) Plaintiff filed this complaint seeking to recover $219.52, the cost of automotive repair which plaintiff contends she incurred as a result of negligence on the part of defendant, Department of Transportation, in maintaining the roadway. Plaintiff submitted the $25.00 filing fee and also seeks reimbursement for this amount.

{¶ 3} 3) Defendant has denied liability based on the fact it had no knowledge of the pothole prior to plaintiff’s property damage occurrence.

{¶ 4} 4) Plaintiff has not submitted any evidence to indicate the length of time the pothole existed prior to the incident forming the basis of this claim.

{¶ 5} 5) Defendant has asserted maintenance records show no pothole patching operation were needed in the general vicinity of plaintiff’s incident during the six-month period prior to the February 20, 2004, property damage event.

CONCLUSIONS OF LAW {¶ 6} 1) Defendant has the duty to keep roads in a safe, drivable condition. Amica Mutual v. Dept. of Transportation
(1982), 81-02289-AD.

{¶ 7} 2) 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} 3) There is no evidence defendant had actual notice of the damage-causing pothole.

{¶ 9} 4) 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} 5) Size of the defect (pothole) is insufficient to show notice or duration of existence. O’Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d 297.

{¶ 11} 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.

{¶ 12} 7) No evidence has shown defendant had constructive notice of the pothole.

{¶ 13} 8) Furthermore, plaintiff has failed to show defendant negligently maintained the roadway.

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.