Edwards v. Ohio Dept. of Transp., Dist. 8

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[Cite as Edwards v. Ohio Dept. of Transp., Dist. 8, 2006-Ohio-7173.] IN THE COURT OF CLAIMS OF OHIO DENISE A. EDWARDS : Plaintiff : v. : CASE NO. 2006-01343-AD OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8 : MEMORANDUM DECISION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On November 20, 2005, at approximately 1:00 p.m., plaintiff, Denise A. Edwards, was traveling south on Interstate 75 over the Ohio River bridge near milepost 1 in Cincinnati, when her automobile struck a deep pothole in the roadway. The pothole caused damage to both the front and rear left tires of plaintiff s vehicle. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $426.05, her total cost of automotive repair, plus a claim for filing these fee reimbursement. expenses as a result Plaintiff of contended negligence on she incurred the part of defendant, Department of Transportation( DOT ), in maintaining the roadway. {¶ 3} 3) Defendant denied liability based on the assertion it professed to have no knowledge of the damage-causing pothole prior to plaintiff s November 20, 2005, incident. Defendant denied receiving any calls or complaints before November 20, 2005, about a pothole that DOT located at, approximately milepost 0.21 on I-75 in Hamilton County, on the Brent Spence Bridge. Defendant suggested, it is likely the pothole existed for only a short time before the incident. {¶ 4} 4) Defendant related the particular section of Interstate 75 is inspected, at least two times a month, and DOT conducts proper roadway maintenance. {¶ 5} 5) Plaintiff, investigation report, in her observed response defendant to defendant s submitted documents showing pothole repairs were conducted between mileposts .2 and .1 on Interstate 75 South on June 15, 2005. Plaintiff pointed out the pothole patching material used on June 15, 2005, was described as cold patch. Plaintiff contended defendant should have used hot mix asphalt to repair potholes and consequently, plaintiff argued the failure by defendant to use hot mix asphalt for pothole patching represents negligent maintenance on the part of DOT. Furthermore, plaintiff related defendant s submitted record complaint shows DOT received a pothole complaint on August 12, 2005, and the pothole was reportedly located at 75 SB just before the brent spence 2nd lane from right. Plaintiff explained this reported location is the same location of the pothole her car struck on November 20, 2005. Defendant s record noted the pothole reported on August 12, 2005, had been repaired before the August 12, 2005, complaint was received. Additionally, defendant s complaint record shows DOT received two complaints about the damage-causing pothole on November 22, 2005, two days after plaintiff s damage occurrence. {¶ 6} 6) Plaintiff exhibit B. submitted a document self described as This document appears to be a phone log regarding reports of roadway hazards on Interstate 75 Southbound at the Brent Spence Bridge. The governmental entity who compiled this phone log was not identified. An entry on the log reveals a roadway reported hazard complaint was in the location of plaintiff s incident at about 1:00 p.m. on November 19, 2005. Plaintiff argued this November 19, 2005, logged complaint of a roadway hazard on Interstate 75 South at the Brent Spence Bridge imputes prior actual notice to DOT of the roadway defect which damaged her car twenty-four hours later. CONCLUSIONS OF LAW {¶ 7} 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, highways. defendant 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. {¶ 8} To prove a breach of duty by defendant to maintain the highways plaintiff must establish, by a preponderance of the evidence, that DOT had actual or constructive notice of the precise condition or defect alleged to have caused the accident. McClellan v. ODOT (1986), 34 Ohio App. 3d 247. Defendant is only liable for roadway conditions of which it has notice, but fails to reasonably correct. (1986), 31 Ohio Misc. 2d 1. Bussard v. Dept. of Transp. No evidence has shown defendant had actual notice of the damage causing pothole. Although evidence has shown some entity received actual notice of the defect on November 19, 2005, about twenty-four hours before plaintiff s incident (see plaintiff s exhibit B), this evidence of actual notice cannot be imputed to defendant. Actual notice of a roadway defect to a public safety governmental entity does not constitute actual notice of the defect to DOT without evidence DOT received notice of the defect from the governmental entity. See McClellan, supra; Geilinger v. Dept. of Transp., 2004-02211AD, 2004-Ohio-2890. {¶ 9} Therefore, to find liability plaintiff must prove DOT had constructive notice of the defect. 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 developed. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. {¶ 10} In order plaintiff 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. the defect existence. is insufficient to show notice or Size of duration of O Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d 297. A finding of constructive notice is a determination the court must make on the facts of each case not simply by apply a pre-set-time standard for the discovery of certain road hazards. Bussard, supra, at 4. Obviously, the requisite length of time sufficient to constitute constructive notice varies with each specific situation. Danko v. Dept. of Transp. (Feb. 4, 1993), Franklin App. No. 92AP-1183. Ohio {¶ 11} Evidence has shown the pothole on Interstate 75 was present at least twenty-four hours prior to plaintiff s property damage event. constitutes a The issue finding of presented is constructive whether notice this of evidence the defect. Constructive notice is that which the law regards as sufficient to give notice notice. and is regarded as a substitute for actual In re Estate of Fahle (1950), 90 Ohio App. 195, 197. Constructive notice of roadway potholes has been determined in multiple frame. claims involving less than a twenty-four hour time See McGuire v. Ohio Department of Transportation (2002), 2001-08722-AD; Piscioneri v. Ohio Dept. of Transportation, District 12, 2002-10836-AD, 2003-Ohio-2173, jud; Kill v. Ohio Department of Transportation, 2003-01512-AD, 2003-Ohio-2620, jud; Grothouse v. Ohio Department of Transportation, District 1, 2003-01521-AD, 2003-Ohio-2621, Transportation, 2003-01652-AD, Department Transportation, of jud; Zeigler v. 2003-Ohio-2625; 2003-02179-AD, Department Sheaks v. of Ohio 2003-Ohio-2176, jud. {¶ 12} However, in the matter of Pompignano v. Ohio Dept. of Transp., 2005-02117-AD, jud; 2005-Ohio-3976, in a Motion for Court Review, the court concluded in reversing a determination by the Clerk that thirteen hours constructive notice of a defect is insufficient notice to invoke liability on DOT. The court in reversing the finding of constructive notice quoted and adopted DOT s argument: {¶ 13} It is inappropriate that ODOT be held negligent for not patrolling every square mile of roadway every twelve hours. Such a ruling is against all case law created outside the limited arena of these administrative decisions. motion for court review, page 7). (Defendant s In its reversal order the court also recognized a constructive notice standard involving downed signage. The court noted in finding, that evidence of a stop sign being down for less than 24 hours was not enough time to impute constructive notice of its condition to ODOT. See Cushman v. Ohio Dept. of Transp. (June {¶ 14} 8, 1995), Court of Claims No. 91-11591; affirmed (Mar. 14, 1996), Franklin App. No. 95API07-8844. The court, in the instant claim, is required to follow existing precedent. Consequently, plaintiff has failed to prove defendant had sufficient constructive notice of the damage-causing pothole to invoke liability. {¶ 15} Furthermore, the court concludes plaintiff has failed to produce evidence showing the roadway was negligently maintained by DOT s choice to repair potholes with cold mix. Plaintiff has not produced any evidence to infer defendant, in a general sense, maintains its highways negligently defendant s acts caused the defective condition. or that Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD. Although some evidence exists to indicate plaintiff s car was damaged by a pothole that had been previously patched, this evidence alone does not prove negligent maintenance. A pothole patch which deteriorates in less than ten days is prima facie evidence of negligence maintenance. Transportation, See 2003-01270-AD, Matala v. Department 2003-Ohio-2618. However, of a decision to use cold mix to patch a pothole which may have or may not have deteriorated over several months does not constitute in and of itself conclusive evidence of negligent maintenance. {¶ 16} evidence, Plaintiff has not shown, by a preponderance of the that defendant failed to discharge a duty owed to plaintiff, or that plaintiff s injury was proximately caused by defendant s negligence. Plaintiff has failed to show that the damage-causing pothole was connected to any conduct under the control of defendant or that there was any negligence on the part of defendant or its agents. Taylor v. Transportation Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. IN THE COURT OF CLAIMS OF OHIO DENISE A. EDWARDS : Plaintiff : v. : CASE NO. 2006-01343-AD OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8 : 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: Denise A. Edwards 2657 Algonquin Pkwy. Toledo, Ohio 43606 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 3/24 Filed 4/11/06 Sent to S.C. reporter 5/11/06

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