Pompignano v. Ohio Dept. of Transp.

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[Cite as Pompignano v. Ohio Dept. of Transp., 2005-Ohio-3976.] IN THE COURT OF CLAIMS OF OHIO MICHELLE POMPIGNANO : Plaintiff : v. : CASE NO. 2005-02117-AD : MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 3 : Defendant : : : : : : : : : : : : : : : : : {¶ 1} On January 12, 2005, at approximately 7:00 p.m., plaintiff, Michelle Pompignano, was traveling north on State Route 3 in Medina County, when her automobile struck a massive pothole in the roadway causing wheel damage to the vehicle. this damage-causing pothole measured about eighteen inches wide and two feet long. Plaintiff related ten inches deep, According to plaintiff, the pothole was located on State Route 3, approximately 200 feet north of Lexington Ridge Rd. been damaged from striking At least three other vehicles had the pothole prior to plaintiff s incident. {¶ 2} Plaintiff filed this complaint seeking to recover $319.63, the cost of replacement parts, related repair expenses, and costs which plaintiff contends she incurred as a result of negligence on the part of defendant, Department of Transportation ( DOT ), in maintaining the roadway. Plaintiff submitted photographs depicting the damage-causing pothole on State Route 3. was patched occurrence. at some time after This roadway defect plaintiff s property damage An incident report of plaintiff s January 12, 2005, damage event was compiled by Montville Township Police Officer, Sgt. Terry P. Grice. In this report, Sgt. Grice noted contacting the DOT garage supervisor about the pothole on State Route 3. Apparently, DOT dispatched a repair crew to the pothole site at sometime after 7:30 p.m. on January 12, 2005. {¶ 3} Defendant denied having any knowledge of the damagecausing pothole prior to plaintiff s incident. Defendant located the pothole at milepost 9.86 on SR 3 in Medina County. Defendant acknowledged receiving a telephone complaint on January 12, 2005, regarding this pothole on State Route 3 at the intersection of Lexington Ridge Road. The complainant, Kristina Pelligrino, had apparently suffered automobile damage from striking the pothole. copy of the recorded complaint was submitted. However, A the approximate time the complaint was received on January 12, 2005, was not recorded. Defendant did not submit a copy of DOT telephone logs from Medina County. Defendant denied being aware of the pothole on State Route 3 before the incident forming the basis of this claim. {¶ 4} Defendant suggested the damage-causing pothole probably, existed in that location for only a relatively short amount of time before plaintiff s incident. Defendant did not offer a more precise opinion regarding how long this large defect was present before 7:00 p.m. on January 12, 2005. roadway inspections of State Route 3 Defendant did profess are conducted by DOT personnel, on a routine basis, at least one to two times a month. Defendant did not submit when State Route 3 in the vicinity of Lexington Ridge Road was last inspected prior to January 12, 2005. Defendant did not provide information concerning the method of these routine inspections. vicinity of plaintiff s Defendant asserted the roadway in the incident was in good condition with maintenance records showing no pothole patching operations were needed in that area during the six-month period preceding January 12, 2005. Defendant contended plaintiff failed to produce any evidence establishing acts or omissions on the part of DOT caused her property damage. {¶ 5} Defendant has the duty to maintain its highways 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. {¶ 6} To prove a breach of duty by defendant to maintain the highways plaintiff must establish, by a preponderance of the evidence, that DOT 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. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1. No evidence has shown defendant had actual notice of the damage causing pothole. Therefore, to find liability plaintiff must prove DOT had constructive notice of the defect. 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 developed. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. {¶ 7} 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 at 4. 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. {¶ 8} Evidence in another claim filed in this court has shown the pothole on State Route 3 north of Lexington Ridge Road was present in that particular area at 7:00 a.m., on January 12, 2005. See, Barrow v. Ohio Department of Transportation, District 3, 2005-02443-AD, 2005-Ohio-2890. The pothole on State Route 3 had to form sometime prior to 7:00 a.m., on January 12, 2005, more than twelve hours prior to plaintiff s property damage event. instant claim, constructive sufficient notice established. of evidence the to prove damage-causing In the defendant pothole has had been See McGuire v. Ohio Department of Transportation (2002), 2001-08722-AD; Piscioneri v. Ohio Dept. of Transportation, District 12, 2002-10836-AD, 2003-Ohio-2713, jud; Kill v. Ohio Department of Transportation, 2003-01512-AD, 2003-Ohio-2620, jud; Grothouse v. Ohio Department of Transportation, District 1, 200301521-AD, 2003-Ohio-2621, Transportation, jud; 2003-01652-AD, Zeigler v. 2003-Ohio-2625; Department Sheaks v. of Ohio Department of Transportation, 2003-02179-AD, 2003-Ohio-2176, jud. Sufficient time elapsed for defendant to have been aware of the pothole and taken measures to initiate repairs. notice has been proven, defendant is Since constructive consequently liable plaintiff for all damages claimed. IN THE COURT OF CLAIMS OF OHIO MICHELLE POMPIGNANO : Plaintiff : v. : CASE NO. 2005-02117-AD to OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 3 : 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 plaintiff in the amount of $319.63, 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. DANIEL R. BORCHERT Deputy Clerk Entry cc: Michelle Pompignano 5710 Ridge Road Wadsworth, Ohio 44281 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 6/29 Filed 7/13/05 Sent to S.C. reporter 8/3/05

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