Damis v. Ohio Dept. of Transp.
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[Cite as Damis v. Ohio Dept. of Transp., 2003-Ohio-5562.] IN THE COURT OF CLAIMS OF OHIO MARINA DAMIS : Plaintiff : v. : CASE NO. 2003-06921-AD : MEMORANDUM DECISION OHIO DEPT. OF TRANSPORTATION Defendant : ::::::::::::::::: FINDINGS OF FACT {¶1} 1) On February 4, 2003, plaintiff, Marina Damis, was entering the on- ramp for U.S. 422 at SOM Center Road in Cuyahoga County when her automobile struck a pothole causing damage to the vehicle. {¶2} 2) Plaintiff filed this complaint seeking to recover $266.19, the cost of automotive repair and related costs, which plaintiff contends she incurred as a result of negligence on he part of defendant, Department of Transportation, in maintaining the roadway. Plaintiff submitted the filing fee with the complaint. {¶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 two pothole patching operations were needed in the general vicinity of plaintiff s incident during the twomonth period preceding plaintiff s 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 that 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 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. {¶14} 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: Marina Damis 8738 Basswood Place Macedonia, Ohio 44056 Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 9/23 Filed 10/2/03 Sent to S.C. reporter 10/21/03 Plaintiff, Pro se For Defendant
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