[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 time 
the road reflector was loose or detached from the roadway surface prior to his January 

23, 2011 damage occurrence. Defendant explained SR 224 was regularly maintained 

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. Township 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 or 
constructive 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 time or responded in a negligent manner, or 2) that 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 evidence 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. There is no indication that defendant 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 negligently 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 6/4/11 
Sent to S.C. reporter 9/12/11