Sent to S.C. Reporter 2/28/24
MEMORANDUM DECISION
{¶1} Brian Cudnik ("plaintiff) filed this claim against defendant, Ohio Department of Transportation ("ODOT"), to recover damages which occurred when plaintiffs 2021 Honda Civic struck a pothole on February 12, 2023, while plaintiff was traveling eastbound on United States ("US") Route 20, approximately 300 feet from Middle Ridge Road, in Lake County, Ohio. This road is a public road maintained by ODOT. Plaintiff's vehicle sustained damages in the amount of $250.00. Plaintiff maintains an automobile insurance policy with State Farm and has a collision insurance deductible of $250.00. Plaintiff submitted the $25.00 filing fee.
{¶2} To recover on a claim for roadway damages against ODOT, Ohio law requires proof that plaintiff's motor vehicle sustained damages as a result of coming into contact with a dangerous condition on a road maintained by ODOT; that ODOT knew or should have known about the dangerous road condition; and that ODOT, armed with this knowledge, failed to repair or remedy the dangerous condition in a reasonable time. Miller v. Ohio Dept. of Transp., 10th Dist. Franklin No. 13AP-849, 2014-Ohio-3738.
{¶3} Next, plaintiff must prove that ODOT had actual or constructive notice of the pothole. Constructive notice is a substitute for actual notice. Constructive notice exists where a defect must have existed so long as to impute knowledge. Kemer v. Ohio Dept of Transp., 10th Dist. Franklin No. 09AP-248, 2009-Ohio-5714.
{¶4} 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. McClellan v. Ohio Dept. of Transp., 34 Ohio App.3d 247, 250, 517 N.E.2d 1388 (10th Dist. 1986).
{¶5} In the investigation report, ODOT indicated that the location of the incident was on U.S. 20, at state mile marker 225.0 (county mile marker 22.5), in Lake County. This section of the roadway on U.S. 20 has an average daily traffic count of 21,010 vehicles. Despite this volume of traffic, ODOT had received zero (0) reports of potholes on this section of the roadway prior to plaintiffs incident. Thus, the court is unable to find that ODOT knew about this particular pothole.
{¶6} Within the past six months, ODOT conducted one hundred seventy-one (171) maintenance operations on U.S. 20 in Lake County where this incident occurred. If any pothole were 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 pothole developed only shortly before plaintiff struck it.
{¶7} A review of the maintenance history by route provided by ODOT with the investigation report revealed pavement patching operations occurred at the damage-causing location on February 2, 2023, ten (10) days prior to plaintiffs incident.
{¶8} A patch that deteriorates in less than ten days is prima facie evidence of negligent maintenance. Matala v. Ohio Dept. of Transp., Ct. of Cl. No. 2003-01270-AD, 2003-Ohio-2618.
{¶9} In this case, pavement patching operations took place ten (10) days prior to plaintiffs incident. According to the maintenance report, ODOT conducted pavement patching operations on February 2, 2023, beginning at county mile marker 17.42 and ending at county mile marker 28.01. This is conclusive evidence of negligent maintenance.
{¶10} Plaintiff did not submit a response to defendant's investigation report.
{¶11} R.C. 2743.02(D) states in pertinent part: "Recoveries against the state shall be reduced by the aggregate of insurance proceeds, disability award, or other collateral recovery that the claimant receives or is entitled to."
{¶12} Therefore, judgment is rendered in favor of plaintiff in the amount of $250.00, plus $25.00 for reimbursement of the filing fee pursuant to the holding in Bailey v. Ohio Dept. of Rehab. & Corr., 62 Ohio Misc.2d 19, 587 N.E.2d 990 (Ct. of Cl. 1990).
{¶13} 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 $275.00, which includes reimbursement of the $25.00 filing fee. Court costs are assessed against defendant.