Opinion
No. 87-02728-AD.
Decided July 25, 1988.
Sharon Ann Spires, pro se. Bernard B. Hurst, Director, Ohio Dept. of Transportation, for defendant.
On June 3, 1988, a deputy clerk of this court issued an opinion (see Appendix) wherein he found that on December 30, 1986, plaintiff, Sharon Ann Spires, was driving northbound on Interstate 270 in Franklin County, when her automobile struck a large chuckhole in the roadway, causing substantial property damage in the total sum of $425.72. On June 16, 1988, the defendant filed a motion for court review of said decision pursuant to R.C. 2743.10 and C.C.R. 6(H).
The deputy clerk found that the defendant did not have actual notice of the pothole but opined that constructive notice can be inferred due to the pothole's size. The deputy clerk concluded that the pothole "was not the product of overnight or spontaneous birth" and the defendant failed to respond in a reasonable time.
It is the court's opinion that the factual conclusions reached by the deputy clerk are not supported by either the evidence or the law. Therefore, this court shall vacate the clerk's determination and dismiss the plaintiff's claim.
The court finds that the evidence does not show when the pothole first developed or the dimensions of the pothole. Before a fact-finder can conclude whether a pothole was existing for a certain or reasonable period of time he must first make a judgment as to when it developed. The mere fact that the pothole did not develop overnight does not justify the conclusion that the defendant had constructive notice and was thereby negligent.
Having considered the evidence in the file, the court renders the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. On or about December 30, 1986, plaintiff was driving on the entrance ramp to I-270 (north from I-70 west) when her automobile hit a pothole in the highway, causing a blow-out of her right front tire, bending her tire rim and requiring a front end alignment of her automobile. Such repairs cost $425.72;
2. The file does not indicate the size of the pothole or the speed of plaintiff's automobile prior to its striking said pothole;
3. There is no evidence in the file tending to show that defendant had actual notice of this pothole;
4. There is no evidence in the file to show how long the pothole existed prior to the accident.
CONCLUSIONS OF LAW
1. The plaintiff has failed to prove by a preponderance of the evidence that the defendant had constructive notice of the pothole and failed to respond in a reasonable time. Denis v. Dept. of Transp. (Feb. 27, 1976), Ct. of Claims No. 75-0287-AD, unreported.
2. The deputy clerk incorrectly determined that the defendant was negligent and thus erred in granting plaintiff damages in the amount of $425.72.
Judgment for defendant.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.
APPENDIX
DANIEL R. BORCHERT, Deputy Clerk.
On December 30, 1986, plaintiff, Sharon A. Spires, was driving northbound on Interstate 270 in Franklin County, when her automobile struck a large chuckhole in the roadway, causing substantial property damage. Plaintiff has filed this complaint seeking to recover $425.72, the cost of vehicle repair, which plaintiff contends was incurred as a result of negligence on the part of defendant, Department of Transportation.
After review of the plaintiff's complaint, the defendant's Investigation Report, and other evidence in the case file, the court makes the following determination. Defendant must exercise due care and diligence in the proper 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.
There is no evidence in the case file which tends to show defendant had actual notice of the accident-causing chuckhole. Conversely, this court finds the defendant had constructive notice of the highway defect. The chuckhole causing plaintiff's accident was of sufficient size to cause extensive damage to plaintiff's car. Therefore, the court concludes the highway defect involved in the instant case was not a product of overnight or spontaneous birth. Consequently, the court finds defendant is liable to plaintiff for her property damage as a result of negligent conduct in not responding in a reasonable time to a roadway defect to which it should have had knowledge. Therefore, the court finds defendant liable to plaintiff in the amount of $425.72.
Having considered all evidence in the claim file and adopting the opinion filed concurrently herewith;
IT IS ORDERED THAT:
1. Defendant (Ohio Department of Transportation) pay plaintiff (Sharon A. Spires) $425.72 and such interest as is allowed by law;
2. The court absorb the court costs for this case in excess of the filing fee.