Hornsby v. Ohio Dept. of Transp., Dist. 10
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[Cite as Hornsby v. Ohio Dept. of Transp., Dist. 10, 2004-Ohio-7293.] IN THE COURT OF CLAIMS OF OHIO RANDY HORNSBY : Plaintiff : v. : CASE NO. 2004-09436-AD : MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 10 : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On August 27, 2004, an automobile owned by plaintiff, Randy Hornsby, struck a pothole at milepost 1.00 of State Route 329 in Athens County causing tire and rim damage to the vehicle. The pothole was located partially on the traveled portion of the roadway at the highway edge line. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $940.63, the cost of automotive repair which plaintiff contends he incurred as a result of negligence on the part of defendant, Department of Transportation, in maintaining the roadway. Plaintiff submitted the $25.00 filing fee. {¶ 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.1 1 Plaintiff filed a response on November 17, 2004. {¶ 5} 5) Defendant has asserted maintenance records show no pothole patching operations were needed in the general vicinity of plaintiff s incident during the six-month period preceding the August 27, 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) 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 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 the existence of the defect. 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 RANDY HORNSBY : Plaintiff : v. : CASE NO. 2004-09436-AD : ENTRY OF ADMINISTRATIVE DETERMINATION OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 10 : 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: Randy Hornsby Box 302 Coolville, Ohio Plaintiff, Pro se 45723 Gordon Proctor, Director Department of Transportation 1980 West Broad Street For Defendant Columbus, Ohio 43223 RDK/laa 11/19 Filed 12/1/04 Sent to S.C. reporter 1/10/05
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