[Cite as Rousculp v. Ohio Dept. of Transp., 2011-Ohio-3872.]



                                      Court of Claims of Ohio
                                                                        The Ohio Judicial Center
                                                                65 South Front Street, Third Floor
                                                                           Columbus, OH 43215
                                                                 614.387.9800 or 1.800.824.8263
                                                                            www.cco.state.oh.us



VICTORIA ROUSCULP

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 7

       Defendant


        Case No. 2011-01399-AD


Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶ 1} In her complaint, plaintiff, Victoria Rousculp, alleges that on December 26,
2010, at approximately 2:15 p.m., she was traveling south on Interstate 75, “near Piqua”
when her automobile struck a pothole in the left roadway lane. The pothole caused tire,
rim, suspension, and steering damage to plaintiff’s vehicle.
        {¶ 2} Plaintiff filed this complaint seeking to recover $1,236.85, the cost of
replacement parts and automotive repair resulting from the December 26, 2010,
incident.    Plaintiff asserted she incurred these damages as a proximate cause of
negligence on the part of defendant, Department of Transportation (“DOT”), in
maintaining the roadway. The $25.00 filing fee was paid.
        {¶ 3} Defendant located the pothole at milepost 78.50 in Miami County.
According to defendant, the Miami County Garage received a call “at 3:00 p.m. about a
pothole on I-75 near CR-25A, Exit 78. Brian Evers got the call and had the pothole
repaired within an hour (See Exhibit C).” Exhibit C is a copy of an email communication
authored by Brian Evers and states, in relevant part: “[w]e were first informed of this
particular pothole at approx. 3:00 p.m. on Sunday the 26th. The call was relayed to me
by radio operator Dan Knoop. I drove to where the pothole was reported, to be sure the
report was accurate. It was. I immediately proceeded to the Troy garage, got in T-7-
663, which had cold patch on it, grabbed a mechanic and another highway worker, and
drove back to the hole and filled it with Patrol giving us traffic control. Time from when I
received the call and when hole was filled was approx. 1 hour. Keep in mind we also
had 11 crews on snow and ice at that time.”
       {¶ 4} Defendant explained DOT employees conduct roadway inspections on all
state roadways on a routine basis, “at least one to two times a month.” Defendant
denied DOT employees were negligent in regard to roadway maintenance.
       {¶ 5} Plaintiff filed a response and included a copy of the Ohio State Highway
Patrol (OSHP) report documenting her property-damage incident.            According to the
OSHP report, the incident occurred at 3:45 p.m. and the OSHP was notified at 3:58 p.m.
The report states that plaintiff “struck a large pot hole in the left lane, which was located
at a later time. ODOT fixed the pot hole later in the day.” Therefore, evidence exists to
establish the damage-causing pothole was present on the roadway at least 45 minutes
prior to plaintiff Rousculp’s property-damage occurrence.
       {¶ 6} Defendant filed a reply to plaintiff’s response.      Defendant related that
although it was snowing and snow and ice removal is the defendant’s top priority, once
the pothole was located it was repaired within an hour.
                                    CONCLUSIONS OF LAW
       {¶ 7} Defendant has the duty to maintain its highways in a reasonably safe
condition for the motoring public. Knickel v. Ohio Department of Transportation (1976),
49 Ohio App. 2d 335.       However, defendant is not an insurer of the safety of its
highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189;
Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723.
       {¶ 8} To prove a breach of duty by defendant to maintain the highways plaintiff
must establish, by a preponderance of the evidence, that DOT had actual or
constructive notice of the precise condition or defect alleged to have caused the
accident. McClellan v. ODOT (1986), 34 Ohio App. 3d 247. Defendant is only liable for
roadway conditions of which it has notice, but fails to reasonably correct. Bussard v.
Dept. of Transp. (1986), 31 Ohio Misc. 2d 1. Defendant has admitted it had actual
notice of the damage-causing pothole and that its employee traveled to the location of
the pothole immediately after receiving
      {¶ 9} such notice. In addition, defendant’s employee apparently left the area and
traveled to another garage to assemble equipment and additional workers to effectuate
the necessary repairs.
      {¶ 10} Evidence has established defendant had notice of the pothole on I-75 for
less than one hour prior to plaintiff’s property-damage event. Upon review of all the
evidence presented, the court finds that defendant acted reasonably in initiating the
pothole repairs after confirming the existence and location of the pothole. Consequently,
the court finds defendant is not liable for the damages claimed.
                                  Court of Claims of Ohio
                                                                           The Ohio Judicial Center
                                                                   65 South Front Street, Third Floor
                                                                              Columbus, OH 43215
                                                                    614.387.9800 or 1.800.824.8263
                                                                               www.cco.state.oh.us




VICTORIA ROUSCULP

          Plaintiff

          v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 7

          Defendant

          Case No. 2011-01399-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION

          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 defendant. Court costs are assessed against plaintiff.



                                                   ________________________________
                                                   DANIEL R. BORCHERT
                                                   Deputy Clerk

Entry cc:

Victoria Rousculp                                  Jerry Wray, Director
3276 E. Possum Road                                Department of Transportation
Springfield, Ohio 45502                            1980 West Broad Street
                                                   Columbus, Ohio 43223
SJM/laa
4/4
Filed 4/21/11
Sent to S.C. reporter 8/5/11
