Parks v. Ohio Dept. of Transp. , 2011 Ohio 5520 ( 2011 )

[Cite as Parks v. Ohio Dept. of Transp., 2011-Ohio-5520.]
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
JILL C. PARKS,
Plaintiff, Case No. 2011-02972-AD
v.
OHIO DEPARTMENT OF TRANSPORTATION,
Defendant. Acting Clerk Daniel R. Borchert
MEMORANDUM DECISION
FINDINGS OF FACT
{¶ 1} In her complaint, plaintiff, Jill Parks, relates that on February 7, 2011, at
approximately 6:55 a.m., she was “[d]riving to work on I75 S and hit a huge pothole on
the interstate in the left lane. This pothole was in the left lane in line with the driver’s
side of the car and was so large that it was unavoidable.” In addition, plaintiff asserts
the “incident occurred on I75 S between Mitchell and 74.” Plaintiff suffered damage to
the left front tire and rim from the impact.
{¶ 2} Plaintiff filed this complaint seeking to recover $200.59, the cost of a
replacement tire and wheel and related repair expenses. Plaintiff asserted she 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 4.4 and 6.46 on I-75 in
Hamilton County. According to defendant, two complaints regarding potholes near this
location were received, one on December 31, 2010, which was repaired the same day,
and another on February 7, 2011, which was repaired on February 11, 2011.
{¶ 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, she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her 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.
{¶ 8} “[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 circumstances
defendant should have acquired knowledge of its existence. Guiher v. Dept. of
Transportation (1978), 78-0126-AD; Gelarden v. Ohio Dept. of Transp., Dist. 4, Ct. of Cl.
No. 2007-02521-AD, 2007-Ohio-3047.
{¶ 9} The trier of fact is precluded from making an inference of defendant’s
constructive notice, unless evidence is presented in respect to the time that the pothole
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458.
{¶ 10} In another case filed with this court, plaintiff Kevin White filed a complaint
stating that on January 4, 2011, while driving on I-75 southbound “from Mitchell Ave Exit
6 toward downtown Cincinnati” he “hit a huge pothole in the extreme left hand lane” at
mile marker 5.1. White further stated that he drove that route every day to work and
that as of February 22, 2011, the pothole had not been repaired. The court finds that in
all likelihood plaintiff Parks struck the same pothole. Based upon plaintiff White’s sworn
statement in Case No. 2011-02891, the court finds that DOT had constructive notice of
the pothole plaintiff hit.
{¶ 11} Additionally, the trier of fact finds it is extremely unlikely periodic
inspection activity would not have discovered the damage-causing defect on I-75
southbound between the Mitchell Avenue exit and Interstate 74 at some time between
January 4 and February 7, 2011. The credibility of witnesses and the weight
attributable to their testimony are primarily matters for the trier of fact. State v. DeHass
(1967), 10 Ohio St. 2d 230, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the
syllabus. The court is free to believe or disbelieve, all or any part of each witness’s
testimony. State v. Antill (1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548.
The court does not find defendant’s assertions persuasive that routine patrols were
conducted or that the roadway was adequately maintained. Indeed, the trier of fact
finds that there is no evidence that the roadway was routinely inspected or that the
inspection was adequate. Kornokovich v. Ohio Dept. Of Transp., Ct. Of Cl. No. 2009-
05641-AD, 2009-Ohio-7123. Conversely, the trier of fact finds plaintiff White’s
assertions persuasive that the roadway was not adequately maintained. Negligence
in this action has been proven and defendant is liable to plaintiff for all damages
claimed, $200.59, plus the $25.00 filing fee costs. Bailey v. Ohio Department of
Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.
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
JILL C. PARKS,
Plaintiff, Case No. 2011-02972-AD
v.
OHIO DEPARTMENT OF TRANSPORTATION,
Defendant. Acting Clerk Daniel R. Borchert
ENTRY OF ADMINISTRATIVE DETERMINATION
{¶ 12} 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 plaintiff in the amount of $225.59, which includes the filing fee. Court costs
are assessed against defendant.
DANIEL R. BORCHERT
Acting Clerk
Entry cc:
Jill C. Parks Jerry Wray, Director
10938 Fernhill Drive Department of Transportation
Sharonville, Ohio 45241 1980 West Broad Street
Columbus, Ohio 43223
6/8
Filed 7/19/11
Sent to S.C. reporter 10/27/11