[Cite as Stratton v. Ohio Dept. of Transp., 2011-Ohio-5727.]

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

JEREMIAH DOUGLAS STRATTON, : Case No. 2011-04576-AD 

 Plaintiff, 

 v. : Acting Clerk Daniel R. Borchert 

OHIO DEPARTMENT OF TRANSPORTATION, 

 Defendant. : MEMORANDUM DECISION

{¶ 1} Plaintiff, Jeremiah Stratton, filed this action against defendant, Department 

of Transportation (ODOT), contending that his 1998 Honda Civic was damaged as a 

proximate result of negligence on the part of ODOT in maintaining a road reflector on I270 in Franklin County. In his complaint, plaintiff provided a narrative description of his 

damage incident noting that he was driving his car on December 2, 2009, at 

approximately 7:15 a.m. when “a bus kicked up a road reflector lodging it in the driver’s 

side front end against radiator while fracturing multiple places.” Plaintiff implied that the 

damage to the automobile was proximately caused by negligence on the part of ODOT 

in failing to maintain the roadway free of hazardous debris conditions. Plaintiff filed this 

complaint seeking to recover $894.27, which represents the cost of automotive repairs 

and reimbursement of the filing fee. The $25.00 filing fee was paid. 

{¶ 2} Defendant denied liability based on the contention that no ODOT 

personnel had any knowledge of the damage-causing debris condition prior to plaintiff’s 

incident. Defendant located the debris near milepost 42.80 on I-270 in Franklin County. 

Defendant asserted plaintiff failed to establish the length of time the debris existed on 

the roadway prior to his property-damage event. Defendant suggested, “that the debris 

existed in that location for only a relatively short amount of time before plaintiff’s 
incident.” Defendant contended plaintiff failed to establish the damage-causing debris 

condition was attributable to any conduct on the part of ODOT. Plaintiff did not file a 

response. 

{¶ 3} 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 only 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. 

{¶ 4} 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. 

{¶ 5} 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. 
{¶ 6} Plaintiff has not provided any evidence to prove that 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. 

{¶ 7} “[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. 

{¶ 8} 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. 

{¶ 9} 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. 

In addition, plaintiff has failed to provide sufficient evidence to prove that defendant 

maintained a hazardous condition on the roadway which was the substantial or sole 

cause of his property damage. or that defendant knew about the particular reflector 

condition prior to December 2, 2009. 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. 

{¶ 10} In his complaint, plaintiff acknowledged the debris plaintiff’s car struck was 

displaced by a third party, another motorist. Defendant has also denied liability based 

on the particular premise it had no duty to control the conduct of a third person except in 

cases where a special relationship exists between defendant and either plaintiff or the 

person whose conduct needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin 

Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769, Jordan v. Ohio Dept. of 

Transp., Dist. 8, Ct. of Cl. No. 2010-01336-AD, 2010-Ohio-4583. 
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 

JEREMIAH DOUGLAS STRATTON, : Case No. 2011-04576-AD 

 Plaintiff, 

 v. : Acting Clerk Daniel R. Borchert 

OHIO DEPARTMENT OF TRANSPORTATION, 

 Defendant. : 

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 

 Acting Clerk 

Entry cc: 

Jeremiah Douglas Stratton Jerry Wray, Director 

 Department of Transportation 

 1980 West Broad Street 

 Columbus, Ohio 43223 
7/1 

Filed 7/21/11 

Sent to S.C. reporter 11/4/11