Marcis v. Ohio Dept. of Transp.
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[Cite as Marcis v. Ohio Dept. of Transp., 2004-Ohio-4830.] IN THE COURT OF CLAIMS OF OHIO JANIS E. MARCIS : Plaintiff : v. : : OHIO DEPARTMENT OF TRANSPORTATION CASE NO. 2004-05830-AD MEMORANDUM DECISION : Defendant ::::::::::::::::: FINDINGS OF FACT 1) {¶1} On January 5, 2004, plaintiff, Janis E. Marcis, was traveling on State Route 28 about fifty feet west on Elm Street in Mulberry, Ohio when her automobile struck a large pothole causing damage to the vehicle. 2) {¶2} Plaintiff filed this complaint seeking to recover $192.74, the cost of tire and rim replacement which plaintiff contends she incurred as a result of negligence on the part of defendant, roadway. Department of Transportation, in maintaining the Plaintiff submitted the $25.00 filing fee and also seeks reimbursement for this amount. {¶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 one pothole patching operation was needed in the general vicinity of plaintiff s incident during the three weeks prior to the January 5, 2004, 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) plaintiff must In order to recover on a claim of this type, 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 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 the 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. IN THE COURT OF CLAIMS OF OHIO JANIS E. MARCIS : Plaintiff : v. : : OHIO DEPARTMENT OF TRANSPORTATION CASE NO. 2004-05830-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: Janis E. Marcis 933 Tarragon Lane Milford, Ohio 45150 Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 Plaintiff, Pro se For Defendant DRB/RDK/laa 7/15 Filed 8/19/04 Sent to S.C. reporter 9/13/04
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