Francisco v. Ohio Dept. of Transp.

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[Cite as Francisco v. Ohio Dept. of Transp., 2006-Ohio-7133.] IN THE COURT OF CLAIMS OF OHIO AMBER E. FRANCISCO : Plaintiff : v. : CASE NO. 2005-11311-AD : MEMORANDUM DECISION OHIO DEPT. OF TRANSPORTATION Defendant : : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On October 29, 2005, plaintiff, Amber E. Francisco, was traveling east on Interstate 76 at the Route 94 exit ramp when her automobile struck a large pothole causing tire and rim damage. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $288.99, her total cost of automotive repair which plaintiff contends she incurred as a result of negligence on the part of defendant, Department of Transportation ( DOT ), in maintaining the roadway. The $25.00 filing fee was paid. {¶ 3} 3) Defendant denied liability based on the fact it professed to have no knowledge of the damage-causing pothole prior to plaintiff s incident. Defendant suggested the pothole plaintiff s car struck probably existed for only a relatively short amount of time before plaintiff s incident. Defendant denied receiving any prior complaints about the pothole which DOT located at milepost 9.76 on I-76 in Medina County. {¶ 4} 4) Plaintiff did not submit any evidence to establish the length of time the pothole existed prior to the October 29, 2005, property damage event. {¶ 5} 5) Furthermore, defendant explained a DOT employee Case No. 2005-11311-AD -2- MEMORANDUM DECISION conducts roadway inspections of Interstate 76 at least two times a month and any discovered defects are promptly repaired. Defendant contended, plaintiff did not produce sufficient evidence to prove DOT breached any duty of care owed to the traveling public in respect to roadway maintenance. CONCLUSIONS OF LAW {¶ 6} 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 is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723. {¶ 7} 2) In order to prove a breach of the duty to maintain the highways, plaintiff must prove, by a preponderance of the evidence, that defendant had actual or constructive notice of the precise condition or defect alleged to have caused the accident. v. ODOT (1986), 34 Ohio App. 3d 247. McClellan Defendant is only liable for roadway conditions of which it has notice, but fails to reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1. {¶ 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, Case No. 2005-11311-AD -3- MEMORANDUM DECISION 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 defects. {¶ 12} Guiher v. Jackson (1978), 78-0126-AD. 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. [Cite as Francisco v. Ohio Dept. of Transp., 2006-Ohio-7133.] IN THE COURT OF CLAIMS OF OHIO AMBER E. FRANCISCO : Plaintiff : v. : CASE NO. 2005-11311-AD : ENTRY OF ADMINISTRATIVE DETERMINATION OHIO DEPT. OF TRANSPORTATION 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: Amber E. Francisco 147 E. Marion Doylestown, Ohio 44230 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 2/22 Filed 2/28/06 Sent to S.C. reporter 3/24/06

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