Ryan v. Ohio Dept. Transp.
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[Cite as Ryan v. Ohio Dept. Transp., 2006-Ohio-7147.] IN THE COURT OF CLAIMS OF OHIO DOUGLAS P. RYAN : Plaintiff : v. : CASE NO. 2005-11230-AD DEPARTMENT OF TRANSPORTATION : MEMORANDUM DECISION Defendant : : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On October 28, 2005, plaintiff, Douglas P. Ryan, stated he was traveling west on Interstate 76 exiting onto State Route 94 in Medina County, when the automobile he was driving struck a large hole causing damage to the vehicle. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $250.00, his insurance coverage deductible for automotive repair which plaintiff contends he incurred as a result of negligence on the part of defendant, maintaining the roadway. Department of Transportation, in The $25.00 filing fee was paid and plaintiff requests reimbursement of that amount. {¶ 3} 3) Defendant has denied liability based on the fact it had no knowledge of the hole prior to plaintiff s property damage occurrence. {¶ 4} 4) Plaintiff has not submitted any evidence to indicate the length forming of the photographs time basis of the the hole existed of this claim. roadway plaintiff was driving. defect prior which to the Plaintiff damaged incident submitted the vehicle The photographs depict a deteriorated area well off the traveled portion of the roadway. CONCLUSIONS OF LAW {¶ 5} 1) 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 highways. is not an insurer of the safety of its 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} 2) he must For plaintiff to prevail on a claim of negligence, prove, by a preponderance of the evidence, that defendant owed him a duty, that it breached that duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St. 3d 79, 81, 2003-Ohio-2573 at ¶8, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77. {¶ 7} 3) This court has previously held that the Department of Transportation is not to be held liable for damages sustained by individuals who used the berm or shoulder of a highway for travel without adequate reasons. Colagrossi v. Department of Transportation (1983), 82-06474-AD. {¶ 8} 4) plaintiff In order to must prove recover either: on 1) a claim defendant of this had type, actual or constructive notice of the defect and failed to respond in a reasonable time or responded in a negligent manner, or 2) that defendant, negligently. 0287-AD. in a general sense, maintains is highways Denis v. Department of Transportation (1976), 75- {¶ 9} 5) There is no evidence defendant had actual notice of the damage-causing defect located off the traveled portion of the roadway. {¶ 10} 6) The trier of fact is precluded from making an inference of defendant s constructive notice, unless evidence is presented in developed. respect to the time the defective condition Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. {¶ 11} 7) 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. {¶ 12} 8) In plaintiff order must show for there sufficient to time be constructive has elapsed notice, after the dangerous condition appears, so that under the circumstances, defendant should have acquired knowledge of its existence. Guiher v. Dept. of Transportation (1978), 78-0126-AD. {¶ 13} 9) No evidence has shown defendant had constructive notice of the defect located off the traveled portion of the roadway. {¶ 14} 10) The shoulder of a highway is designed to serve a purpose which may include travel under emergency circumstances. It is for the trier of fact to determine whether driving on the shoulder is a foreseeable and reasonable use of the shoulder of the highway. 128. Dickerhoof v. City of Canton (1983), 6 Ohio St. 3d In the case at bar, plaintiff has offered no reasonable explanation or excuse for using the berm of the highway. {¶ 15} 11) Plaintiff, in the instant case, has shown no adequate reason for his action of driving on the berm of the highway, consequently, based supra, this case is denied. on the rationale of Colagrossi, If a plaintiff sustains damage because of a defect located off the marked, regularly traveled portion of a roadway, a necessity for leaving the roadway must be shown. 0612-AD. Lawson v. Department of Transportation (1977), 75Inadvertent travel based on inattention is not an adequate reason or necessity for straying from the regularly traveled portion of the roadway. Transportation reason to evidence condition. (2000), drive off establishing Smith v. Ohio Department of 2000-05151-AD. the roadway defendant s he Assuming has notice plaintiff failed of the to had produce defective IN THE COURT OF CLAIMS OF OHIO DOUGLAS P. RYAN : Plaintiff : v. : CASE NO. 2005-11230-AD DEPARTMENT OF TRANSPORTATION : ENTRY OF ADMINISTRATIVE DETERMINATION Defendant : : : : : : : : : : : : : : : : : : Having considered all the evidence in the claim file and, for the reasons concurrently defendant. set forth herewith, in the judgment is memorandum rendered decision in filed favor Court costs are assessed against plaintiff. of 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: Douglas P. Ryan 594 Crestwood Avenue Wadsworth, Ohio 44281 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 2/22 Filed 3/17/06 Sent to S.C. reporter 4/7/06
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