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[Cite as Ferguson v. Ohio Dept. of Transp.,
2015-Ohio-5353.] JOSHUA A. FERGUSON Case No. 2015-00302-AD Plaintiff Clerk Mark H. Reed v. MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION Defendant {¶1} Plaintiff Joshua A. Ferguson filed this claim on April 6, 2015 to recover damages which occurred when his vehicle struck a pothole on March 9, 2015 while he was traveling on I-71 North in Hamilton County, Ohio. This road is a public road maintained by the Ohio Department of Transportation. Plaintiff’s vehicle sustained damages in the amount of $301.58. {¶2} In order to recover on a claim for roadway damages against the Ohio Department of Transportation, Ohio law requires that a motorist/plaintiff prove all of the following: {¶3} That the plaintiff’s motor vehicle received damages as a result of coming into contact with a dangerous condition on a road maintained by the defendant. {¶4} That the defendant knew or should have known about the dangerous road condition. {¶5} That the defendant, armed with this knowledge, failed to repair or remedy the dangerous condition in a reasonable time. {¶6} In this claim, the Court finds that the plaintiff did prove that his vehicle received damages and that those damages occurred as a result of the plaintiff’s vehicle coming into contact with a dangerous condition on a road maintained by the defendant. {¶7} The next element that a plaintiff must prove to succeed on a claim such as this is to show that the defendant knew or should have known about this dangerous Case No. 2015-00302-AD -2- MEMORANDUM DECISION condition. Based on the evidence presented, the Court is unable to find that the defendant had actual knowledge of the dangerous condition. Likewise, the Court is unable to find that the defendant should have known about this dangerous condition and thus would have had constructive notice about the highway danger. Constructive notice is defined as “(n)otice arising from the presumption of law from the existence of facts and circumstances that a party has a duty to take notice of...Notice presumed by law to have been acquired by a person and thus imputed to that person.” (Black’s Law Dictionary at 1090 8th Ed. 2004.) {¶8} In order for there to be constructive notice, a plaintiff must prove that sufficient time has passed after the dangerous condition first appears, so that under the circumstances the defendant should have gained knowledge of its existence. This, the plaintiff has been unable to do. {¶9} In the Investigation Report filed July 14, 2015 the defendant stated that the location of the incident was on IR 71, at interstate mile marker 0.22 in Hamilton County. This section of the roadway on IR 71 has an average daily traffic count of between 123,690 and 150,930 vehicles. Despite this volume of traffic, the department had received no notice of a pothole on this roadway prior to plaintiff’s incident. Thus, the Court is unable to find that the department knew about the pothole. Within the past six months, the department conducted three hundred forty-two (342) maintenance operations on IR 71 in Hamilton County where this incident occurred. If any pothole was present for any appreciable length of time, it is probable that it would likely have been discovered by the department’s work crews. It is thus likely that the pothole developed only shortly before plaintiff struck it with his vehicle. Finally, the law in Ohio is that the department is not an absolute insurer of a motorist’s safety on the highway. The department is only liable for damage when the Court finds that it was negligent. This the Court is unable to do. Case No. 2015-00302-AD -3- MEMORANDUM DECISION {¶10} Since the plaintiff is unable to prove that the defendant knew or should have known about this dangerous condition, the claim must fail. JOSHUA A. FERGUSON Case No. 2015-00302-AD Plaintiff Clerk Mark H. Reed v. ENTRY OF ADMINISTRATIVE OHIO DEPARTMENT OF DETERMINATION TRANSPORTATION 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 shall be absorbed by the court. MARK H. REED Clerk Entry cc: Joshua A. Ferguson Jerry Wray, Director 911 Caldwell St Ohio Department Of Transportation Piqua, Ohio 45356 1980 West Broad Street Mail Stop 1500 Columbus, Ohio 43223 Case No. 2015-00302-AD -4- MEMORANDUM DECISION Filed 9/22/15 Sent to S.C. Reporter 12/21/15
Document Info
Docket Number: 2015-00302-AD
Citation Numbers: 2015 Ohio 5353
Judges: Reed
Filed Date: 9/22/2015
Precedential Status: Precedential
Modified Date: 12/28/2015