Opinion
Case No. 2019-00916AD
01-13-2020
RODNEY ADAMS Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant
MEMORANDUM DECISION
{¶1} Rodney Adams ("plaintiff") filed this claim against the Ohio Department of Transportation ("ODOT"), to recover damages which occurred when his 2014 Ford Expedition struck a pothole on June 1, 2019 while he was traveling on State Route ("SR") 16 in Muskingum County, Ohio. This road is a public road maintained by ODOT. Plaintiff's vehicle sustained damages in the amount of $1,267.11. Plaintiff submitted the $25.00 filing fee.
{¶2} In order to recover on a claim for roadway damages against ODOT, 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 ODOT.
{¶4} That ODOT knew or should have known about the dangerous road condition.
{¶5} That ODOT, 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 ODOT.
{¶7} Plaintiff must also prove that ODOT knew or should have known about this dangerous condition to succeed on this claim. See Denis v. Department of Transportation, 75-0287-AD (1976). Based on the evidence presented, the Court is unable to find that ODOT had actual knowledge of the dangerous condition. Further, this Court is unable to find that ODOT should have known about the 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} For constructive notice to exist, a plaintiff must prove that sufficient time has passed after the dangerous condition first appears, so that under the circumstances ODOT should have gained knowledge of its existence. Guiher v. Dept. of Transportation, 78-0126-AD (1978); Gerlarden v. Ohio Dept. of Transp., Dist. 4, Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047. This, the plaintiff has been unable to do.
{¶9} In the Investigation Report, ODOT indicated that the location of the incident was on SR 16 at mile marker 12.0 in Muskingum County. This section of the roadway on SR 16 has an average daily traffic count of 7,785 vehicles. Despite this volume of traffic, ODOT had received no notice of a pothole on this section of the roadway prior to plaintiff's incident.
{¶10} Within the past six months, ODOT conducted fifty-four (54) maintenance operations on SR 16 in Muskingum County where this incident occurred. If any pothole was present for any appreciable length of time, it is probable that it would have been discovered by ODOT work crews. It is thus likely that the pothole developed only shortly before plaintiff struck it with his vehicle.
{¶11} Defendant submitted photographs of the pothole in question, which is located off the traveled portion of the roadway. ODOT cannot be held liable to individuals who used the berm or shoulder of a highway for travel without adequate reason. Colagrossi v. Ohio Department of Transportation, 82-06474-AD (1983).
{¶12} The shoulder of a highway is designed to serve a purpose which may include travel under emergency circumstances. It is for the trier of fact to determine whether driving on the shoulder is a foreseeable and reasonable use of the shoulder of the highway. Dickerhoof v. City of Canton, 6 Ohio St.3d 128, 451 N.E.2d 1193 (1983). In the case at bar, plaintiff stated the "pothole was unavoidable with oncoming traffic." However, the photograph reveals the pothole was outside the white line. Furthermore, plaintiff did not respond to defendant's Investigation Report.
{¶13} Thus, if plaintiff drove off the marked traveled portion of the highway, based on the rationale of Colagrossi, this case must be denied. If a plaintiff sustains damage because of a defect located off the marked, regularly traveled portion of the roadway, a necessity for leaving the roadway must be shown. Lawson v. Department of Transportation, 75-0612-AD (1977). Inadvertent travel based on inattention is not an adequate reason or necessity for straying from the regularly traveled portion of the roadway. Smith v. Ohio Department of Transportation, 2000-05151-AD (2000). Berwanger v. Ohio Dept. of Transp., Ct. of Cl. No. 2007-07396-AD, 2008-Ohio-1602.
{¶14} Finally, the law in Ohio is that ODOT is not an absolute insurer of a motorist's safety on the highway. Kniskern v. Township of Somerford, 112 Ohio App.3d 189, 678 N.E.2d 273 (10th Dist. 1996); Rhodus v. Ohio Dept. of Trans., 67 Ohio App.3d 723, 588 N.E.2d 864 (10th Dist. 1990). The department is only liable for damage when the Court finds that it was negligent. This the Court is unable to do. Accordingly, plaintiff's claim must fail. RODNEY ADAMS Plaintiff
v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2019-00916AD Deputy Clerk Daniel R. Borchert
ENTRY OF ADMINISTRATIVE DETERMINATION
{¶15} 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 the defendant. Court costs shall be absorbed by the court.
/s/_________
DANIEL R. BORCHERT
Deputy Clerk cc: Filed 1/13/20
Sent to S.C. reporter 3/4/20