[Cite as Fry v. Ohio Dept. of Transp. , 2011-Ohio-4586.]



# 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

GARY L. FRY

Plaintiff

v.

DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2011-02085-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

{¶1} Plaintiff, Gary Fry, filed this action against defendant, Department of Transportation (ODOT), contending his 2010 Ford Taurus was damaged as a proximate result of negligence on the part of ODOT in maintaining a road reflector on State Route 224 in Seneca County. In his complaint, plaintiff provided a narrative description of his damage incident noting on January 23, 2011, he was traveling west on State Route 224 when “I passed another vehicle. When passing I ran over one of the reflectors in the road that identifies the centerline. When I did it slit my left rear tire.” Plaintiff requested damages in the amount of $228.07, the cost of a tire and associated repair expenses. The $25.00 filing fee was paid. {¶2} Defendant denied liability in this matter based on the contention that no ODOT personnel had any notice of a loose reflector on SR 224 prior to plaintiff’s incident. Defendant located plaintiff’s incident at milepost 0.90 on SR 224 in Seneca County. Defendant asserted plaintiff failed to provide any evidence to establish his property damage was attributable to any conduct on the part of ODOT. Furthermore, defendant asserted plaintiff failed to provide any evidence indicating the length of timethe road reflector was loose or detached from the roadway surface prior to his January 23, 2011 damage occu rrence. Defendant explained SR 224 was re gularly ma intained in the vicinity of plaintiff’s damage incident with ODOT personnel conducting “eleven(11) maintenance operations on SR 224 at milepost 0.90 for the past six months.” Defendant further explained ODOT was performing inspections of signs and markings on January 20, 2011, a few days before plaintiff’s incident. Defendant related, “if there was a noticeable defect with any raised or loosened pavement markers it would have immediately been repaired.” {¶3} Plaintiff did not file a response. {¶4} For plaintiff to prevail on a claim of negligence, he must prove, by a preponderance of the evidence, that defendant owed him a duty, that it breached that duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff has the burden of proving, by a preponderance of the evidence, that he suffered a loss and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio State University (1977), 76-0368-AD. However, “[i]t is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes a basis for a choice among different possibilities as to any issue in the case he fails to sustain such burden.” Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed. This court, as trier of fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477. {¶5} 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, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Townsh ip of Somerford (1996), 112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723, 588 N.E. 2d 864. {¶6} In order to prove a breach of the duty to maintain the highways, plaintiff must prove, by a preponderance of the evidence, that defendant had actual orconstructive notice of the precise condition or defect alleged to have caused the

accident. McClellan v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388. 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, 31 OBR 64, 507 N.E. 2d 1179. However, proof of notice of a dangerous condition is not necessary when defendant actively caused such condition. See Bello v. City of

Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the syllabus; Sexton v. Ohio Department of Transportation (1996), 94-13861. Plaintiff has failed to produce any evidence to prove that his property damage was caused by a defective condition created by ODOT or that defendant knew about the particular reflector condition prior to January 23, 2011. {¶7} Ordinarily, to recover in a suit involving injury proximately caused by roadway conditions including uprooted reflectors, plaintiff must prove that either: 1) defendant had actual or constructive notice of the debris condition and failed to respond

in a reasonable ti me or responded in a neglig ent manner, or 2) t hat defendant, in a general sense, maintains its highways negligently. Denis v. Department of Transportation (1976), 75-0287-AD. Plaintiff has not provided any evidence to prove ODOT had actual notice of the loose reflector. Therefore, in order to recover plaintiff must offer proof of defendant’s constructive notice of the condition or evidence to establish negligent maintenance. {¶8} “[C]onstructive notice is that which the law regards as sufficient to give notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of

Fahle (1950), 90 Ohio App. 195, 197-198, 47 O.O. 231, 105 N.E. 2d 429. “A finding of

constructive notice is a determination the court must make on the facts of each case not simply by applying a pre-set time standard for the discovery of certain road hazards.”

Bussard , at 4. “Obviously, the requisite length of time sufficient to constitute constructive notice varies with each specific situation.” Danko v. Ohio Dept. of Transp. (Feb. 4, 1993), Franklin App. 92AP-1183. In order for there to be a finding of constructive notice, plaintiff must prove, by a preponderance of the evidence, that sufficient time has elapsed after the dangerous condition appears, so that under the circumstances defendant should have acquired knowledge of its existence. Guiher v. Dept. of Transportation (1978), 78-0126-AD; Gelarden v. Ohio Dept. of Transp., Dist. 4

,Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047. {¶9} Plaintiff has not produced any evidence to indicate the length of time that the road reflector was present on the roadway prior to the incident forming the basis of this claim. Additionally, the trier of fact is precluded from making an inference of defendant’s constructive notice, unless evidenc e is presented in respect to the time that the condition appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. T here is no indication that de fendant had constructive notice of the dislodged reflector. {¶10} Plaintiff has not produced any evidence to infer that defendant, in a general sense, maintains its highways neglig ently or that defendant’s acts caused the

defective condition. Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD. Defendant submitted evidence showing ODOT personnel were routinely performing work activities on the particular section of SR 224 where plaintiff’s damage incident occurred. Plaintiff has failed to provide sufficient evidence to prove defendant maintained a hazardous condition on the roadway which was the substantial or sole cause of his property damage. Plaintiff has failed to prove, by a preponderance of the evidence, that any ODOT roadway maintenance activity created a nuisance. Plaintiff has not submitted evidence to prove that a negligent act or omission on the part of defendant caused the damage to his vehicle. Prstojevic v. Dept. of Transp., Dist. 3 , Ct. of Cl. No. 2009-08519-AD, 2010-Ohio-2186.

# 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

GARY L. FRY

Plaintiff

v.

DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2011-02085-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:

Gary L. Fry Jerry Wray, Director 92 Douglas Street Department of Transportation Tiffin, Ohio 44883 1980 West Broad Street Columbus, Ohio 43223 SJM/laa 5/10 Filed 6/4/11Sent to S.C. reporter 9/12/11