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Benjamin R. Spilman v. the Ohio Department of Transportation

July 19, 2011

BENJAMIN R. SPILMAN, PLAINTIFF,
v.
THE OHIO DEPARTMENT OF TRANSPORTATION, DEFENDANT.



Cite as Spilman v. Ohio Dept. of Transp.,

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

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

FINDINGS OF FACT

{¶1} In his complaint, plaintiff, Benjamin Spilman, alleges that on January 26, 2011, at approximately 5:50 p.m., he was traveling south on Interstate 75, "exiting at the Glendale-Milford Road exit" when his automobile struck a large pothole "in the middle of the exiting lane directly below Glendale-Milford Road." Plaintiff submitted a photograph depicting the pothole and multiple surrounding areas of previous patching attempts.

{¶2} Plaintiff filed this complaint seeking to recover $622.71, the cost of a replacement tire and wheel resulting from the January 26, 2011 incident and reimbursement of the filing fee. Plaintiff asserted he incurred these damages as a proximate result of negligence on the part of defendant, Department of Transportation (DOT), in maintaining the roadway. The $25.00 filing fee was paid.

{¶3} Defendant located the pothole at milepost 14.26 in Hamilton County. According to defendant, one complaint regarding pavement markings at this location was received on November 16, 2010.

{¶4} Defendant explained DOT employees conduct roadway inspections on all state roadways on a routine basis, "at least two times a month." Defendant asserted it "did not receive any reports of the pothole or have knowledge of the pothole prior to the incident." Defendant denied DOT employees were negligent in regard to roadway maintenance.

{¶5} Plaintiff did not file a response.

CONCLUSIONS OF LAW

{¶6} 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, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723, 588 N.E. 2d 864.

{¶7} 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, 517 N.E. 2d 1388. 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, 31 OBR 64, 507 N.E. 2d 1179.

{¶8} In another case filed with the court, Case No. 2011-02565-AD, plaintiff Parsons submitted photographs taken February 12, 2011, depicting the area on I-75 south at mile marker 14.26 and the trier of fact noted one of the photographs submitted by Parsons showed a massive pavement deterioration that spanned nearly the entire length of roadway beneath the overpass. The defect was extensive and showed evidence of chronic failed repair efforts. In addition, attached to its investigation report filed in Case No. 2011-02565-AD, defendant included a copy of an email sent by Seth Pawlak to ODOT on January 27, 2011. In his communication, Pawlak notes that he sent an earlier email to ODOT on January 19, 2011 concerning the number of unrepaired potholes on I-75 southbound near the Glendale-Milford Exit. In the original email sent January 19, 2011, Pawlak wrote "[t]his morning traveling southbound on I-75, transitioning from the middle lane to the right lane, I encountered maybe the largest pothole in recent Cincinnati history. * * * Location of pothole: Southbound prior to Glendale Milford Road and the Interstate I75 access Road." In the email sent January 27, 2011, Pawlak writes, "I am writing once again to address the severity of the conditions with southbound I-75. These conditions are to the point where I may have to find another route to travel. * * * I also understand you request detailed information as to the pothole in question but there are far to many to pinpoint at this moment. The previous pothole I gave details about is still there." (Emphasis added.)

{¶9} Upon review of the evidence submitted to the court to date, the trier of fact finds constructive notice of the pothole has been proven. The photographic evidence supplied establishes that the damage-causing defect was massive in size and constituted a recurring problem defendant failed to properly correct. Pursuant to the holding of Fite v. Ohio Dept. of Transp., Ct. of Cl. No. 2009-05757, 2009-Ohio-7124, "the massive size of a defect coupled with knowledge that the pothole presented a recurring problem is sufficient to prove constructive notice." at ¶ 10. In addition, ODOT ...


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