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

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[Cite as Smith v. Ohio Dept. of Transp., Dist. 8, 2007-Ohio-3044.] Court of Claims of Ohio The Ohio Judicial Center 65 South Front Street, Third Floor Columbus, OH 43215 614.387.9800 or 1.800.824.8263 www.cco.state.oh.us WAYNE SMITH Case No. 2007-01398-AD Plaintiff Deputy Clerk Daniel R. Borchert v. MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8 Defendant FINDINGS OF FACT {¶1} 1) On January 3, 2007, at approximately 5:15 p.m., plaintiff, Wayne Smith, was traveling north on Interstate 75 in Cincinnati onto the exit 4 ramp to Interstate 74 when his automobile struck, a very large, deep and dangerous, pothole located on the exit ramp. The impact of striking the pothole caused tire and wheel damage to plaintiff s vehicle, a 1997 Cadillac DeVille Concours. {¶2} 2) Plaintiff filed this complaint seeking to recover $345.04, the cost of replacement parts and automotive repair necessitated by the property damage event. Plaintiff implied the damage to his car was proximately caused by 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 contention that no DOT personnel had any knowledge of the pothole on the roadway prior to plaintiff s property damage occurrence. Defendant located the damage-causing pothole between mileposts 4.23 to 4.40 on Interstate 75 in Hamilton County. Alternatively, defendant stated, [t]he ramp for westbound I-74 from I-75 is between mileposts 19.02 to 19.47. Defendant asserted plaintiff failed to produce any evidence showing how long the pothole existed prior to the incident forming the basis of this claim. Case No. 2007-01398-AD {¶4} 4) -2- MEMORANDUM DECISION Defendant denied receiving any calls or complaints regarding the particular pothole before plaintiff s incident. Defendant explained DOT employees conduct roadway inspections, at least two times a month. Apparently no potholes were discovered during previous roadway inspections. Defendant suggested the pothole likely, existed for only a short time before the incident, forming the basis of this claim. Defendant denied DOT employees were negligent in regard to roadway maintenance. {¶5} 5) Despite filing a response, plaintiff did not produce evidence establishing the length of time the pothole existed prior to his property damage occurrence at 5:15 p.m. on January 3, 2007. Evidence in another claim involving the same pothole (2007-01631AD) indicates the pothole was present on the roadway by at least 4:40 p.m. on January 3, 2007. {¶6} 6) On March 23, 2007, defendant filed a motion to modify investigation report nunc pro tunc. Defendant notes it erroneously referred to plaintiff as Kaiser rather than Smith in the original investigation report. Defendant wishes to correct the error. Defendant s motion is granted. 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, 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. {¶8} To prove a breach of the 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. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1. No evidence has shown defendant had actual notice of the damage Case No. 2007-01398-AD -3- MEMORANDUM DECISION causing pothole. {¶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. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262. Additionally, size of a pothole is insufficient to prove notice or duration of existence. O Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d 287. {¶10} In order for there to be constructive notice, plaintiff must show sufficient time has elapsed 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. A finding of constructive notice is a determination the court must make on the facts of each case not simply by applying 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. Ohio Dept. of Transp. (Feb. 4, 1993), Franklin App. 92AP-1183, 1993 Ohio App. LEXIS 636. {¶11} Evidence has shown the pothole on Interstate 75 was present at least thirtyfive minutes prior to plaintiff s property damage event. The issue presented is whether this evidence constitutes a finding of constructive notice of the defect. [C]onstructive notice is that which the law regards as sufficient to give notice and is regarded as a substitute for actual notice or knowledge. In re Estate of Fahle (1950), 90 Ohio App. 195, 197-198. Constructive notice of roadway potholes has been determined in multiple claims involving less than a twenty-four hour time frame. 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, 200301512-AD, 2003-Ohio-2620, jud; Grothouse v. Ohio Department of Transportation, District 1; 2003-01521-AD, 2003-Ohio-2621, jud; Zeigler v. Department of Transportation, 2003- Case No. 2007-01398-AD -4- MEMORANDUM DECISION 01652-AD, 2003-Ohio-2625; Sheaks v. Ohio Department of Transportation, 2003-02179AD, 2003-Ohio-2176, jud. {¶12} However, in the matter of Pompignano v. Ohio Dept. of Transp., 2005-02117AD, 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: 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. (Defendant s motion for court review, page 7). In its reversal order the court also recognized a constructive notice standard involving down 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. (1995), 91-11591; affirmed (March 14, 1996), Franklin App. No. 95API07-8844, 1996 Ohio App. LEXIS 990. 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. [Cite as Smith v. Ohio Dept. of Transp., Dist. 8, 2007-Ohio-3044.] Court of Claims of Ohio The Ohio Judicial Center 65 South Front Street, Third Floor Columbus, OH 43215 614.387.9800 or 1.800.824.8263 www.cco.state.oh.us WAYNE SMITH Plaintiff Case No. 2007-01398-AD Deputy Clerk Daniel R. Borchert v. OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8 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. Court costs are assessed against plaintiff. 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: Wayne Smith 10127 N. County Road 100 W. Batesville, Indiana 47006 RDK/laa 3/29 Filed 5/8/07 Sent to S.C. reporter 6/15/07 James Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223

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