Clarke v. Ohio Dept. of Transp., Dist. 3
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[Cite as Clarke v. Ohio Dept. of Transp., Dist. 3, 2005-Ohio-2044.] IN THE COURT OF CLAIMS OF OHIO STEPHEN P. CLARKE : Plaintiff : v. : : OHIO DEPT. OF TRANSPORTATION, DISTRICT 3 CASE NO. 2005-01269-AD MEMORANDUM DECISION : Defendant ::::::::::::::::: FINDINGS OF FACT {¶1} On September 16, 2004, at about 6:00 a.m., plaintiff, Stephen P. Clarke, was traveling west on State Route 18 near milepost 11.0 in Lorain County, when his motorcycle ran over metal debris on the traveled portion of the roadway. The metal debris, described as broken up pieces of truck brake linings, caused substantial damage to plaintiff s vehicle. {¶2} Consequently, plaintiff filed this complaint seeking to recover $1,024.57, his cost of vehicle repair which he contends was incurred as a result of negligence on the part of defendant, Department of Transportation, in maintaining the roadway. Plaintiff submitted the filing fee. {¶3} Defendant has denied any liability for plaintiff s damage. Defendant denied having any knowledge condition prior to plaintiff s incident. of the metal debris Plaintiff has failed to produce any evidence establishing the length of time the metal debris condition was on the roadway prior to his property damage occurrence. Defendant conducts frequent litter inspections and litter pick-up operations in the area of plaintiff s September 16, Case No. 2005-01269-AD -2- MEMORANDUM DECISION 2004, property damage event. CONCLUSIONS OF LAW {¶4} Defendant has the duty to maintain its highway in a reasonably 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. {¶5} In proximately plaintiff order caused must to by prove recover roadway either: in any suit conditions 1) involving including defendant had injury debris, 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. {¶6} Defendant is only liable for roadway conditions of which it has notice, but fails to reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1. {¶7} Plaintiff has not produced any evidence to indicate the length of time the debris condition was present on the roadway prior to the incident forming the basis of this claim. No evidence has been submitted to show defendant had actual notice of the debris. Additionally, 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. 262. Spires v. Highway Department (1988), 61 Ohio Misc. 2d There is no indication defendant had constructive notice of the debris. {¶8} Finally, plaintiff, has not produced any evidence to infer Case No. 2005-01269-AD -3- MEMORANDUM DECISION defendant, in a general sense, maintains its highways negligently or that defendant s acts caused the defective condition. v. Ohio Department of Transportation (1999), Herlihy 99-07011-AD. Therefore, defendant is not liable for any damage plaintiff may have suffered from the roadway debris. [Cite as Clarke v. Ohio Dept. of Transp., Dist. 3, 2005-Ohio-2044.] IN THE COURT OF CLAIMS OF OHIO STEPHEN P. CLARKE Plaintiff : : v. : OHIO DEPT. OF TRANSPORTATION, DISTRICT 3 : CASE NO. 2005-01269-AD ENTRY OF ADMINISTRATIVE DETERMINATION : 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 defendant. are assessed against plaintiff. Court costs 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: Stephen P. Clarke 31312 Tuttle Drive Bay Village, Ohio 44140 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 3/12 Filed 4/5/05 Sent to S.C. reporter 4/29/05
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