Opinion
No. 87-03465-AD.
Decided August 15, 1988.
Norman O'Neil, pro se. Bernard B. Hurst, Director, Department of Transportation, for defendant.
On June 17, 1988, a deputy clerk of this court issued an opinion (see Appendix) wherein he found that on November 19, 1986, plaintiff, Norman O'Neil, was driving his automobile on State Route 11 when his automobile struck a large chuckhole in the roadway causing substantial property damage in the total amount of $676.01. On July 6, 1988, the defendant filed a motion for court review of the clerk's decision pursuant to R.C. 2743.10 and C.C.R. 6(H).
The facts in this case are substantially similar to the facts in Spires v. Ohio Highway Dept. (1988), 61 Ohio Misc.2d 262, 577 N.E.2d 458. I concur with Judge Shoemaker's well-reasoned opinion in Spires wherein he held that the evidence was insufficient to justify a finding that the defendant had knowledge, actual or constructive, of the defect in the roadway. The defendant must have notice in order to act, or otherwise incur liability.
Therefore, it is the court's conclusion that without knowledge of the defect the defendant cannot be found negligent. The deputy clerk committed substantial error by finding that the defendant had notice because of the chuckhole's size. There is no evidence that the defendant had any notice, actual or constructive, of the roadway's condition.
Accordingly, the deputy clerk's decision of June 17, 1988 shall be VACATED and judgment entered for defendant.
Judgment for defendant.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.
APPENDIX Decided June 17, 1988
DANIEL R. BORCHERT, Deputy Clerk.
On November 19, 1986, plaintiff, Norman O'Neil, was driving his automobile on State Route 11 when the vehicle struck a large chuckhole in the roadway. The automobile sustained tire and wheel rim damage as a result of striking the chuckhole, and the plaintiff is seeking to recover $676.01, which represents the repair costs to his car. Plaintiff has alleged his property damage was the result of negligence on the part of defendant, Department of Transportation, for failing to properly maintain the highway.
Defendant, Department of Transportation, asserts it had neither actual nor constructive notice of the roadway defect which caused plaintiff's property damage. Furthermore, defendant maintains it carried on periodic inspection in the area of the accident site. The record also indicates defendant patched and repaired potholes in the accident area only two times in the six-month period prior to the accident, which forms the basis of the instant case.
Defendant must exercise due care and diligence in the property maintenance and repair of highways. Hennessy v. Ohio Highway Dept. (1985), Ct. of Claims No. 85-02071-AD, unreported. Breach of this duty, however, does not necessarily result in liability. Defendant is only liable when plaintiff proves, by a preponderance of the evidence, either: (1) defendant had actual or constructive notice of the defect and failed to respond in a reasonable time or responded in a negligent manner, or (2) defendant in a general sense maintains its highways negligently. Denis v. Dept. of Transp. (1976), Ct. of Claims No. 75-0287-AD, unreported; O'Hearn v. Ohio Dept. of Transp. (1985), Ct. of Claims No. 84-03278-AD, unreported.
Based on the facts in the instant case, the court finds defendant had at least constructive notice of the damage-causing defect. The defect in the instant case was of such magnitude that defendant should have known of its existence and taken precautions to deal with it. Defendant breached its duty of care owed to plaintiff by not responding to the accident-causing defect and is, therefore, liable. Considering the extensive damage caused to plaintiff's automobile, the chuckhole in question had neither overnight nor spontaneous birth and, therefore, defendant should have had knowledge of it and is subsequently liable to plaintiff.
Although liability has been established, the court is precluded by statute from awarding plaintiff his entire damage claim. Evidence shows the plaintiff received $288.81 from his automobile insurance carrier as partial payment for the repair cost to the automobile.
R.C. 2743.02(D) states:
"Recoveries against the state shall be reduced by the aggregate of insurance proceeds, disability award, or other collateral recovery received by the claimant." (Emphasis added.)
Therefore, this court is charged by statute in reducing plaintiff's damage award by the amount he received from his insurance carrier. Consequently, the court finds defendant liable to plaintiff in the amount of $387.20.
ORDER OF ADMINISTRATIVE DETERMINATION
Having considered all evidence in the claim file and adopting the opinion filed concurrently herewith;
IT IS ORDERED THAT:
1. Defendant (Department of Transportation) pay plaintiff (Norman O'Neil) $387.20 and such interest as is allowed by law;
2. The court absorb the court costs for this case in excess of the filing fee.