Opinion
2022-00126AD
10-07-2022
WILLIAM HAWKINS Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant
Sent to S.C. Reporter 2/8/2023
MEMORANDUM DECISION
{¶1} William Hawkins ("plaintiff") filed this claim against the defendant, Ohio Department of Transportation ("ODOT"), to recover damages which occurred when his 2002 Hyundai Elantra struck a pothole on January 25, 2022, while he was traveling on Interstate Route ("IR") 270S, from the IR70 entrance ramp, in Franklin County, Ohio. This road is a public road maintained by ODOT. Plaintiff's vehicle sustained damages in the amount of $250.70. Plaintiff submitted the $25.00 filing fee. Plaintiff has auto insurance with Morley, Parren, Bright with a $100.00 deductible.
{¶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 the dangerous condition to succeed on this claim. See Denis v. Department of Transportation, 75-0287-AD (1976).
{¶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); Gelarden v. Ohio Dept. of Transp., Dist. 4, Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
{¶9} In the Investigation Report, ODOT indicated that the location of the incident was on IR270, at mile marker 4.0, in Franklin County. This section of the roadway on IR270 has an average daily traffic count of 82,034 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} However, plaintiff submitted a response to defendant's Investigation Report. Plaintiff included a map, indicating where the damage-causing event occurred. This event occurred on the east side of the outer belt (IR270) where IR70 meets IR270. A review of the map for IR270 reveals the damage-causing incident occurred near mile markers 42.80 to 44.00.
{¶11} However, a review of the Incident Report for IR270 from 7/25/2021 to 1/25/2022 reveals motorists struck the same pothole that plaintiff encountered on January 20, 21, and 25, 2022.
{¶12} Evidence is available to establish the particular damage-causing pothole was present on the roadway prior to 10:30 am on January 25, 2022, the time of the damage-causing incident as recorded by the Columbus Police Department. The Incident Report reveals ODOT was notified of the pothole at 10:40 am on January 20th, 7:00 am and 3:00 pm on January 21st, and January 25th at 10:00 am. This evidence is sufficient to base a finding of constructive notice. To prove constructive notice, plaintiff must show 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.
{¶13} "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 v. Dept. of Transp., 31 Ohio Misc.2d 1, 4, 507 N.E.2d 1179 (Ct. of Cl.1986). "Obviously, the requisite length of time sufficient to constitute constructive notice varies with each specific situation." Danko v. Ohio Dept. of Transp., 10th Dist. Franklin No. 92AP-1183 (Feb. 4, 1993). "[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, 90 Ohio App. 195, 197-198, 105 N.E.2d 429 (6th Dist. 1950). Constructive notice of roadway potholes has been determined in multiple claims involving less than a twenty-four hour time frame. See McGuire v. Ohio Department of Transportation, 2001-08722-AD (2002); Piscioneri v. Ohio Dept. of Transportation, Ct. of Cl. No. 2002-10836-AD, 2003-Ohio-2173, jud; Kill v. Ohio Department of Transportation, Ct. of Cl. No. 2003-01512-AD, 2003-Ohio-2620, jud; Zeigler v. Department of Transportation, Ct. of Cl. No. 2003-01652-AD, 2003-Ohio-2625; Sheaks v. Ohio Department of Transportation, Ct. of Cl. No. 2003-02179-AD, 2003-Ohio-2176, jud.
{¶14} However, in the matter of Pompignano v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-02117-AD, jud; 2005-Ohio-3976, in a Motion for Court Review, the court concluded in reversing a determination by the Clerk that thirteen hours constructive notice of a defect is insufficient notice to invoke liability on ODOT. The court, in reversing the finding of constructive notice, quoted and adopted ODOT's argument: "It is inappropriate that ODOT be held negligent for not patrolling every square mile of roadway every twelve hours. Such a ruling is against all case law created outside the limited arena of these administrative decisions." (Defendant's motion for court review, page 7). In its reversal order, the court also recognized a constructive notice standard involving down signage. The court noted in finding, "that evidence of a stop sign being down for less than 24 hours was not enough time to impute constructive notice of its condition to ODOT." See Cushman v. Ohio Dept. of Transp., 91-11591 (1995); affirmed, 10th Dist. No. 95API07-8844 (March 14, 1996).
{¶15} The court in the instance claim determines constructive notice of the pothole was imputing considering the existing evidence establishing the pothole was present on the roadway for more than four days before plaintiff's damage occurrence. Since the pothole existed on January 20th, it is sufficient to involve liability on the part of ODOT. Weitzman v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-07942-AD: affirmed (April 8, 2009), 2008-Ohio-7129; Stoller v. Ohio Dept of Transp., Ct. of Cl. No. 2010-03177-AD, 2010-Ohio-4960. Defendant is liable to plaintiff in the amount of $100.00, his insurance WILLIAM HAWKINS Case No. 2022-00126AD deductible, pursuant to R.C. 2743.16(B), plus $25.00 for reimbursement of the filing fee pursuant to the holding in Bailey v. Ohio Department of Rehabilitation and Correction, 62 Ohio Misc.2d 19, 587 N.E.2d 990 (Ct. of Cl. 1990).
ENTRY OF ADMINISTRATIVE DETERMINATION
{¶16} 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 plaintiff in the amount of $125.00, which includes reimbursement of the $25.00 filing fee. Court costs are assessed against defendant.