Oliver v. Ohio Dept. of Transp.
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[Cite as Oliver v. Ohio Dept. of Transp., 2003-Ohio-7142.] IN THE COURT OF CLAIMS OF OHIO DONALD C. OLIVER : Plaintiff : v. : CASE NO. 2003-10040-AD : MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION : Defendant ::::::::::::::::: FINDINGS OF FACT {¶1} 1) On August 5, 2003, plaintiff, Donald C. Oliver, was traveling east on Interstate 70 between State Route 201 and State Route 202 in Montgomery County when his van struck chunks of rock/cement in the traveled portion of the roadway. The rocklike debris caused damage to plaintiff s vehicle. {¶2} 2) Plaintiff filed this complaint seeking to recover $1,970.65 for automotive repair. Plaintiff asserted he 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 debris condition existed. {¶4} 4) Plaintiff has not presented any evidence to indicate the length of time the rocklike debris were 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 Department (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 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. {¶8} 4) There is no evidence defendant had actual notice of the debris. {¶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 debris appeared on the roadway. 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 debris appears, so that under the circumstances, defendant should have acquired knowledge of its existence. Guiher v. Jackson (1978), 780126-AD. {¶11} 7) No evidence has shown defendant had constructive notice of the damage-causing debris. {¶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. ________________________________ DANIEL R. BORCHERT Deputy Clerk Entry cc: Donald C. Oliver 1813 Briedweng Avenue Kettering, Ohio 45420 Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 DRB/RDK/laa 12/2 Filed 12/9/03 Sent to S.C. reporter 12/29/03 Plaintiff, Pro se For Defendant
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