Poffenbarger v. Ohio Dept. of Transp.
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[Cite as Poffenbarger v. Ohio Dept. of Transp., 2004-Ohio-3063.] IN THE COURT OF CLAIMS OF OHIO DARRELL POFFENBARGER Plaintiff : : v. : : OHIO DEPARTMENT OF TRANSPORTATION CASE NO. 2004-01559-AD MEMORANDUM DECISION : Defendant ::::::::::::::::: FINDINGS OF FACT {¶1} 1) On December 22, 2003, plaintiff, Darrell Poffenbarger, was traveling south on State Route 127 at Fox Avenue in the town of New Miami, when his vehicle struck a broken road reflector laying on the traveled portion of the roadway. Plaintiff stated his truck fender was damaged as a result of striking the broken reflector. {¶2} 2) Plaintiff filed this complaint seeking to recover $1,265.25, the cost of vehicle repair. Plaintiff asserted he incurred these damages as a proximate cause of negligence on the 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 the defective condition existed prior to plaintiff s incident. {¶4} 4) Plaintiff has not submitted any evidence to indicate the length of time the loose reflector was on the roadway surface prior to his property damage occurrence. CONCLUSIONS OF LAW {¶5} 1) Defendant has the duty to keeps the roads in a safe, drivable condition. Amica Mutual v. Dept. of Transportation (1982), 81-02289-AD. {¶6} 2) Defendant must exercise due care and diligence in the proper 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 defect (reflector) 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 damage-causing reflector. {¶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 defective condition (reflector) developed. 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 dangerous condition (reflector) appears, so that under the circumstances, defendant should have acquired knowledge of its existence. Guiher v. Jackson (1978), 78-0126-AD. {¶11} 7) No evidence has shown defendant had constructive notice of the damage-causing reflector. {¶12} 8) Plaintiff has not submitted any evidence to prove the roadway was negligently maintained. {¶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: Darrell Poffenbarger 5889 Beverly Lane Middletown, Ohio 45042 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 5/5 Filed 5/11/04 Sent to S.C. reporter 6/15/04
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