Pothole, traveled portion of the roadway. Automotive damage to motorist. No notice shown. Judgment for defendant.

[Cite as Goldsby v. Ohio Dept. of Transp., 2002-Ohio-4641.]

IN THE COURT OF CLAIMS OF OHIO

NYRESHA L. GOLDSBY : 2972 High Forest Lane #407

Cincinnati, Ohio 45223-1322 : Case No. 2002AD

Plaintiff : MEMORANDUM DECISION

v. :

DEPARTMENT OF TRANSPORTATION :

Defendant :

____________________

For Defendant: Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223

____________________

FINDINGS OF FACT

1) On April 15, 2002, at approximately 11:00 p.m., plaintiff, Nyresha L. Goldsby, was traveling on Interstate 74 near the Colerain Avenue exit in Hamilton County when her automobile struck a pothole causing coil spring damage to the vehicle.

2) Plaintiff filed this complaint seeking to recover $370.96, the cost of automotive repair which plaintiff contends she incurred as a result of negligence on the part of defendant, Department of Transportation, in maintaining the roadway. On June 3, 2002, plaintiff submitted the filing fee.

3) Defendant has denied liability based on the fact it had no knowledge of the pothole prior to plaintiff's property damage occurrence.

4) Plaintiff has not submitted any evidence to indicate

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the length of time the pothole existed prior to the incident forming the basis of this claim.

5) Defendant has asserted maintenance records show two pothole patching operations were needed in the general vicinity of plaintiff's incident during the three-month period preceding plaintiff's property damage event. CONCLUSIONS OF LAW

1) Defendant has the duty to keep roads in a safe, drivable condition. Amica Mutual v. Dept. of Transportation (1982), 81AD.

2) In order to recover on a claim of this type, plaintiff must prove either: 1) defendant had actual or constructive notice of the pothole and failed to respond in a reasonable time or responded in a negligent manner, or 2) that defendant, in a general sense maintains its highways negligently. Denis v. Department of Transportation (1976), 75AD.

3) There is no evidence that defendant had actual notice of the damage-causing pothole.

4) The trier of fact is precluded from making an inference of defendant's constructive notice, unless evidence is presented in respect to the time the pothole developed. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262.

5) Size of the defect is insufficient to show notice or duration of existence. O'Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d 287.

6) In order for there to be 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. Jackson (1978), 78AD.

7) No evidence has shown defendant had constructive notice of the pothole.

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8) Furthermore, plaintiff has failed to show defendant negligently maintained the roadway.

Having considered all the evidence in the claim file and adopting the memorandum decision concurrently herewith;

IT IS ORDERED THAT:

1) Plaintiff's claim is DENIED and judgment is rendered in favor of defendant;

2) The court shall absorb the court costs of this case in excess of the filing fee.

____________________

DANIEL R. BORCHERT Deputy Clerk RDK/laa 8/6 Filed 802 Jr. Vol 715, Pg. 157 Sent to S.C. reporter 9/4/

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