Opinion
2020-00365AD
10-20-2020
WILLIAM ROBINSON Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant
Sent to S.C. Reporter 10/21/21
MEMORANDUM DECISION
{¶1} William Robinson ("plaintiff) filed this claim against the Ohio Department of Transportation ("ODOT"), to recover damages which occurred when his 2017 Toyota Highlander struck a pavement buckle on May 25, 2020, while he was traveling on Interstate Route ("IR") 77 North in Washington County, Ohio. This road is a public road maintained by ODOT. Plaintiffs vehicle sustained damages in the amount of $678.40. 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 plaintiffs 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 plaintiffs vehicle coming into contact with a dangerous condition on a road maintained by ODOT.
{¶7} In the Investigation Report, ODOT indicated that the location of the incident was on IR 77 at mile marker 15 in Washington County. This section of the roadway on IR 77 has an average daily traffic count of 16, 275 vehicles. Despite this volume of traffic, ODOT had received zero (0) notices of a pavement buckle on this section of the roadway prior to plaintiffs incident.
{¶8} Within the past six months, ODOT conducted one hundred sixty-three (163) maintenance operations on IR 77 in Washington County where this incident occurred. If any pavement buckle 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 pavement buckle developed only shortly before plaintiff struck it with his vehicle.
{¶9} Plaintiff did file a response to defendant's Investigation Report.
{¶10} Generally, in order to prove a breach of a duty to maintain highways, plaintiff must prove, by a preponderance of the evidence, that ODOT had actual or constructive notice of the precise condition or defect alleged to have caused the damage-causing event. McClellan v. ODOT, 34 Ohio App.3d 247, 517 N.E.2d 1388 (10th Dist. 1986). Defendant is only liable for roadway conditions of which it has notice but fails to reasonably correct. Bussard v. Dept. of Transp., 31 Ohio Misc.2d 1, 507 N.E.2d 1179 (Ct. of Cl. 1986). There is no evidence in the instant claim to prove ODOT had either actual or constructive notice of the defect that damaged plaintiffs vehicle.
{¶11} However, for plaintiff to prevail in a claim involving damages from a highway blowup, general notice of the condition is sufficient. Knickel v. Ohio Department of Transportation, 49 Ohio App.2d 335, 361 N.E.2d (10th Dist. 1976). In Knickel, the 10th District Court of Appeals stated, "there is a general foreseeability that blow-ups will occur and that someone will be injured as the result (and) although there is no way to predict where, when, or with magnitude a blow-up will occur, they can be prevented" at 339. See also Furbay v. Ohio Department of Transportation, 95-09248AD (1995), Colucci v. Department of Transportation, 99-11326AD (1999), Ackerman v. Ohio Department of Transportation, 2004-08022AD (2004), and Gamble v. Ohio Department of Transportation, 2018-01102AD (2018).
{¶12} Furthermore, plaintiff noted that this section of IR 77 was in disrepair. Plaintiff related on the day of the incident, he spoke with an Ohio State Trooper who stated this section of the roadway was a chronic issue. Plaintiff also referenced a Maintenance History by Route supplied by defendant which revealed biweekly road inspections of this section of the highway were conducted on May 14, 15, 16, and 20.
{¶13} The credibility of witnesses and the weight attributable to their testimony are primary matters for the trier of in fact. State v. DeHass, 10 Ohio St.2d.230, 227 N.E.2d 212 (1967), paragraph one of syllabus. The court is free to believe or disbelieve, all or any part of each witness's testimony. State v. Antill, 176 Ohio State 61, 197 N.E.2d 548 (1964). While inspections of this section of the roadway occurred four (4) times prior to plaintiffs damage-causing incident, no repairs were conducted until after plaintiffs incident.
{¶14} Plaintiff related that while only one (1) tire was damaged at the time of the incident, his tire provider, Bleifus Tire, Alignment, Brake and Battery, informed him that due to his vehicle being all-wheel drive, all tires need replacement. See Miller v. Ohio Department of Transportation, 2014-00894 (2015); Grimm v. Ohio Department of Transportation, 2020-00322AD (2020).
{¶15} Therefore, ODOT is liable to plaintiff in the instant claim under the general notice rationale advanced in Knickel. Plaintiff suffered damages in the amount of $678.40, plus $25.00 for the reimbursement of the filing fee as a compensable cost pursuant to the holding in Bailey v. Ohio Department of Rehabilitation and Correction, 62 Ohio Misc.2d 19, 587N.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 plaintiff in the amount of $703.40, which includes reimbursement of the $25.00 filing fee. Court costs are assessed against defendant.