[Cite as Brown v. Ohio Dept. of Transp., Dist. 11, 2005-Ohio-643.]
IN THE COURT OF CLAIMS OF OHIO
ERIK BROWN
:
Plaintiff
:
v.
:
CASE NO. 2004-09690-AD
:
MEMORANDUM DECISION
OHIO DEPT. OF TRANSPORTATION,
DIST. 11
:
Defendant
: : : : : : : : : : : : : : : : :
FINDINGS OF FACT
{¶ 1} 1) On
June
18,
2004,
at
approximately
4:15
a.m.,
plaintiff, Erik Brown, was traveling west on The Trenton Avenue
Connector in Tuscarawas County when his motorcycle hit a deep
pothole causing substantial damage to the vehicle.
Plaintiff
related the pothole his motorcycle struck was located just past the
limits of Uhrichsville, Ohio approaching the U.S. Route 36 on ramp.
{¶ 2} 2) Plaintiff filed this complaint seeking to recover
$793.28, the total cost of repairing his motorcycle resulting from
striking the pothole in the traveled portion of the roadway.
Plaintiff also requested reimbursement of the $25.00 filing fee.
Plaintiff contended he incurred these expenses as a proximate cause
of
negligence
Transportation
roadway.
on
the
(“DOT”),
part
in
of
failing
defendant,
to
Department
of
maintain
the
properly
The requisite material filing fee was paid.
{¶ 3} 3) Defendant
denied
liability
based
on
the
fact
it
professed to have no knowledge of the damage-causing pothole prior
to
plaintiff’s
plaintiff’s
incident.
motorcycle
Defendant
struck
probably
suggested
the
existed
“for
pothole
only
a
relatively short amount of time before plaintiff’s incident.”
Defendant asserted
{¶ 4} DOT personnel conduct roadway inspections of all roadways
in
Tuscarawas
County
at
least
one
or
more
times
a
month.
Defendant’s records show no telephone complaints were received
about potholes in the vicinity of The Trenton Avenue Connector at
any
time
between
January
18,
2004
and
June
18,
2004.
DOT
maintenance records show three pothole patching operations were
needed in the vicinity of plaintiff’s roadway incident during the
four-month period preceding the June 18, 2004, property damage
event.
No pothole repairs were made in the area between April 19,
2004, and June 18, 2004.
Defendant stated if any roadway defects
were discovered, “they would have been promptly scheduled for
repair.”
{¶ 5} 4) On January 4, 2005, plaintiff filed a response to
defendant’s investigation report.
Plaintiff related defendant
should have known about numerous potholes in the traveled portion
of the roadway on The Trenton Avenue Connector.
Plaintiff noted
many potholes had existed on this roadway since the winter months
of 2004 and these pothole defects were finally corrected on June
29, 2004, when the roadway was resurfaced.
Plaintiff submitted a
document signed by thirty-seven area residents who all acknowledged
significant potholes were present in the westbound lane of The
Trenton Avenue Connector from January and February, 2004 until June
29, 2004, when roadway repaving occurred.
CONCLUSIONS OF LAW
{¶ 6} 1) Defendant has the duty to maintain its highway in a
reasonable 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.
{¶ 7} 2) In order to prove a breach of duty to maintain the
highways, plaintiff must prove, by a preponderance of the evidence,
that defendant had actual or constructive notice of the precise
condition or defect alleged to have caused the accident.
v. ODOT (1986), 34 Ohio App. 3d 247.
McClellan
Defendant is only liable for
roadway conditions of which it has notice, but fails to reasonably
correct.
The
trier
Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1.
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 developed.
Spires v.
Highway Department (1988), 61 Ohio Misc. 2d 262.
{¶ 8} 3) In order for there to be constructive notice, plaintiff
must show sufficient time has elapsed after the dangerous condition
appears, so that under the circumstances, defendant should have
acquired knowledge of its existence.
0126-AD.
Guiher v. Jackson (1978), 78-
Size of the defect is insufficient to show notice or
duration of existence.
O’Neil v. Department of Transportation
(1988), 61 Ohio Misc. 2d 297.
“A finding of constructive notice is
a determination the court must make on the facts of each case not
simply by applying a pre-set-time standard for the discovery of
certain road hazards.”
Bussard, supra, at4.
“Obviously, the
requisite length of time sufficient to constitute constructive
notice varies with each specific situation.”
Danko v. Ohio Dept.
of Transp. (Feb. 4, 1993), Franklin App. No. 92AP-1183.
{¶ 9} 4) 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.
Department of Transportation (1976), 75-0287-AD.
Denis v.
In the instant
claim, sufficient evidence has been offered by plaintiff to prove
constructive notice, negligent maintenance and resulting liability.
Sufficient time had elapsed for defendant to have discovered the
hazard presented by the pothole.
Defendant is therefore liable to
plaintiff for his repair costs associated with the damage caused by
the
pothole,
plus
filing
fees,
which
may
be
reimbursed
as
compensable damages pursuant to Bailey v. Ohio Department of
Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19.
IN THE COURT OF CLAIMS OF OHIO
ERIK BROWN
:
Plaintiff
:
v.
:
CASE NO. 2004-09690-AD
:
ENTRY OF ADMINISTRATIVE
DETERMINATION
OHIO DEPT. OF TRANSPORTATION,
DIST. 11
:
Defendant
: : : : : : : : : : : : : : : : :
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 $818.28, 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.
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
Erik Brown
417 4th Street N.W.
New Philadelphia, Ohio
Plaintiff, Pro se
44663
Gordon Proctor, Director
Department of Transportation
1980 West Broad Street
Columbus, Ohio 43223
DRB/RDK/laa
1/14
Filed 1/20/05
Sent to S.C. reporter 2/16/05
For Defendant
