[Cite as Kristoff v. Ohio Dept. of Transp., 2015-Ohio-4936.]

                               IN THE COURT OF CLAIMS OF OHIO



ROBERT M. KRISTOF

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2015-00141-AD

Clerk Mark H. Reed

MEMORANDUM DECISION


        {¶1} Plaintiff Robert M. Kristof filed this claim on February 24, 2015, to recover
damages which occurred when his 2003 Acura struck a pothole while traveling on I-71
North just north of the Reading Road exit in Hamilton County, Ohio on February 10,
2015. This road is a public road maintained by the Ohio Department of Transportation.
Plaintiff’s vehicle sustained damages in the amount of $425.37. Plaintiff maintains an
insurance deductible of $500.00.
        {¶2} In order to recover on a claim for roadway damages against the Ohio
Department of Transportation, Ohio law requires that a motorist/plaintiff prove all of the
following:
        {¶3} That the plaintiff’s motor vehicle received damages as a result of coming
into contact with a dangerous condition on a road maintained by the defendant.
        {¶4} That the defendant knew or should have known about the dangerous road
condition.
        {¶5} That the defendant, 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 plaintiff’s vehicle
coming into contact with a dangerous condition on a road maintained by the defendant.
        {¶7} The next element that a plaintiff must prove to succeed on a claim such as
this is to show that the defendant knew or should have known about this dangerous
condition.
       {¶8} Based on the evidence presented, the Court is unable to find that the
defendant had actual knowledge of the dangerous condition. Likewise, the Court is
unable to find that the defendant should have known about this dangerous condition
and thus would have had constructive notice about the highway danger. Constructive
notice is defined as “(n)otice arising from the presumption of law from the existence of
facts and circumstances that a party has a duty to take notice of…Notice presumed by
law to have been acquired by a person and thus imputed to that person.” (Black’s Law
Dictionary at 1090 8th Ed. 2004.)
       {¶9} In order for there to be constructive notice, a plaintiff must prove that
sufficient time has passed after the dangerous condition first appears, so that under the
circumstances the defendant should have gained knowledge of its existence. This the
plaintiff has been unable to do.
       {¶10} In an Investigation Report filed May 1, 2015, the defendant stated that the
location of the incident was at mile marker 1.2 on IR 71 in Hamilton County. This
section of the roadway, on IR 71, has an average daily traffic count of between 52,890
and 62,180 vehicles. Despite this volume of traffic, the department had received no
notice of a pothole on this roadway prior to plaintiff’s incident. Thus, the Court is unable
to find that the department knew about the pothole. Within the past six months, the
department conducted four hundred twenty-four (424) maintenance operations on IR 71
in Hamilton County where this incident occurred. If any pothole was present for any
appreciable length of time, it is probable that it would likely have been discovered by the
department’s work crews. It is thus likely that the pothole developed only shortly before
plaintiff struck it with his vehicle. Finally, the law in Ohio is that the department is not an
absolute insurer of a motorist’s safety on the highway. The department is only liable for
damage when the Court finds that it was negligent. This the Court is unable to do. The
plaintiff did not offer any evidence to counter what was in the defendant’s report
regarding this element.
      {¶11} Since the plaintiff is unable to prove that the defendant knew or should
have known about this dangerous condition, the claim must fail.




                            IN THE COURT OF CLAIMS OF OHIO



ROBERT M. KRISTOF

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

Case No. 2015-00141-AD

Clerk Mark H. Reed

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.




                                                ________________________________
                                                MARK H. REED
                                                Clerk

Entry cc:

Robert M. Kristof                               Jerry Wray, Director
8468 Pondridge Drive                            Ohio Department of Transportation
Maineville, Ohio 45039                          1980 West Broad Street
                                 Mail Stop 1500
                                 Columbus, Ohio 43223

Filed 8/28/15
Sent to S.C. Reporter 11/30/15
