Clay v. Ohio Dept. of Transp., (Ohio 2004)

Summary

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Automobile damage, pothole. No notice. Burden of proof, duty of care. Judgment for defendant.

Summary

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Automobile damage, pothole. No notice. Burden of proof, duty of care. Judgment for defendant.

Text

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[Cite as Clay v. Ohio Dept. of Transp., 2004-Ohio-5143.]

IN THE COURT OF CLAIMS OF OHIO CARL W. CLAY :

Plaintiff :

v. : CASE NO. 2004AD

OHIO DEPT. OF TRANSPORTATION : MEMORANDUM DECISION

Defendant :

____________________

FINDINGS OF FACT

1) On April 22, 2004, plaintiff, Carl W. Clay, was traveling south on State Route 3 at the intersection of State Route 604 in Wayne County, when his automobile struck a pothole causing damage to the vehicle.

2) Plaintiff filed this complaint seeking to recover $262.61, 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. The requisite $25.00 filing fee was paid.

3) Defendant has denied liability based on the fact it had no knowledge of the pothole prior to plaintiff's property damage occurrence.

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.

5) Defendant has asserted maintenance records show five pothole patching operations were needed in the general vicinity of plaintiff's incident during the five-month period preceding the April 22, 2004, property damage event. CONCLUSIONS OF LAW

1) Defendant has the duty to keep roads in a safe, drivable condition. Amica Mutual v. Dept. of Transportation (1982), 81AD.

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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), 75AD.

3) There is no evidence defendant had actual notice of the damage-causing pothole.

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.

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.

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 AD.

7) No evidence has shown defendant had constructive notice of the pothole.

8) Furthermore, plaintiff has failed to show defendant negligently maintained the roadway. IN THE COURT OF CLAIMS OF OHIO

CARL W. CLAY :

Plaintiff :

v. : CASE NO. 2004AD

OHIO DEPT. OF TRANSPORTATION : ENTRY OF ADMINISTRATIVE DETERMINATION

Defendant :

____________________

Having considered all the evidence in the claim file and, for the reasons set forth in the

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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.

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DANIEL R. BORCHERT Deputy Clerk Entry cc: Carl W. Clay Plaintiff, Pro se 102 Kimberly Drive Creston, Ohio 44217 Gordon Proctor, Director For Defendant Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 8/25 Filed 9/2/04 Sent to S.C. reporter 9/27/

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