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David A. Draper v. Department of Transportation

July 27, 2011

DAVID A. DRAPER,
PLAINTIFF,
v.
DEPARTMENT OF TRANSPORTATION, DISTRICT 8, DEFENDANT.



Cite as

Draper v. 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, David Draper, relates that on February 22, 2011, at approximately 10:30 p.m., he "hit an enormous pothole. This hole is located on 75 South between mile marker 5/4 just before the 74 west interchange. It is in the left lane and left tire track." Plaintiff states it was too dangerous to attempt to photograph the pothole which he describes as "approx. 8 inches deep and 20 inches in diameter."

{¶2} Plaintiff filed this complaint seeking to recover $663.54, the cost of a replacement tire and wheel and related repair expenses. 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 between mileposts 5.40 and 4.40 on I-75 in Hamilton County. According to defendant, one complaint regarding potholes at this location was received on December 31, 2010, and the repair was made the same day.

{¶4} Defendant explained DOT employees conduct roadway inspections on all state roadways within the county on a routine basis, "at least two times a month." 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} For plaintiff to prevail on a claim of negligence, he must prove, by a preponderance of the evidence, that defendant owed him a duty, that it breached that duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. 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. There is no evidence that defendant had actual notice of the pothole. Therefore, for the court to find liability on a notice theory, evidence of constructive notice of the pothole must be presented.

{ΒΆ8} "[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, 47 O.O. 231, 105 N.E. 2d 429. "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, 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. In order for there to be constructive notice, plaintiff must prove, by a preponderance of the evidence, that sufficient time has elapsed after the dangerous condition appears, so that under the ...


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