[Cite as Bymaster v. Ohio Dept. of Transp., 2011-Ohio-3533.]

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

JACQUELYN BYMASTER 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-11145-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Jacquelyn Bymaster, filed this action against defendant, 

Department of Transportation (ODOT), contending her 2003 Mercury Sable was 

damaged as a proximate cause of negligence on the part of ODOT in maintaining a 

hazardous condition on State Route 320 in Preble County. Specifically, plaintiff claimed 

her car was damaged when she drove the vehicle over a tree limb laying across the 

roadway at the crest of a hill “in a very shady area which could not be seen at all.” 

Plaintiff recalled the described damage event occurred on August 17, 2010. In her 

complaint, plaintiff requested damage recovery in the amount of $584.77, the total cost 

of replacement parts and related repair expense she incurred as a result of the August 

17, 2010 incident. The filing fee was paid. 

{¶ 2} Defendant conducted an investigation and determined the location of the 

fallen tree limb “between mileposts 2.0 and 2.2 on SR 320 in Preble County.” 

Defendant asserted “ODOT did not receive any reports of the tree limb or have any 

knowledge of the tree limb prior to the incident.” Defendant suggested, “it is likely the 

tree limb existed for only a short time before the incident.” Defendant pointed out 

plaintiff did not offer any evidence to establish the length of time the fallen tree limb was 
laying on the roadway prior to her August 17, 2010 damage occurrence. 

{¶ 3} Defendant contended plaintiff did not produce any evidence to prove her 

property damage was proximately caused by negligent maintenance. Defendant 

advised the ODOT “Preble County Manager inspects all state roadways within the 

county at least two times a month.” Apparently, no problem with a fallen tre limb was 

discovered the last time State Route 320 between milepost 2.0 and 2.2 was inspected 

prior to August 17, 2010. The claim file is devoid of any inspection record. Defendant 

did submit a copy of “Maintenance Records” covering the period from February 17, 

2010 to August 17, 2010, which addressed maintenance work performed on State 

Route 320 by ODOT personnel. On May 27, 2010, ODOT crews conducted 

maintenance of shrubs, plants, and trees along the roadway at milepost 2.0. The entry 

for this maintenance work includes the notation “tree limb hanging in road.” According 

to the submitted “Maintenance Records,” ODOT personnel conducted shoulder and 

ditch work at milepost 2.2 on August 12, 2010, five days prior to plaintiff’s incident. The 

day before plaintiff’s incident, August 16, 2010, ODOT crews maintained trees, plants, 

and shrubs at milepost 2.4. Apparently, no downed tree limb was discovered in the 

area when the work was performed on August 16, 2010. 

{¶ 4} Plaintiff filed a response. Plaintiff did not provide any evidence to 

establish the length of time the fallen tree limb was laying on State Route 320 prior to 

her August 17, 2010 incident. 

{¶ 5} For plaintiff to prevail on a claim of negligence, she must prove, by a 

preponderance of the evidence, that defendant owed her a duty, that it breached that 

duty, and that the breach proximately caused her 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 she 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. 

{¶ 6} 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. 

{¶ 7} 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. 

{¶ 8} Ordinarily, to recover in a suit involving injury proximately caused by 

roadway conditions including fallen tree limbs, 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 

that ODOT had actual notice of the damage-causing condition. Therefore, in order to 

recover plaintiff must offer proof of defendant’s constructive notice of the condition as 

evidence to establish negligent maintenance. 

{¶ 9} “[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, 48 O.O. 231, 105 N.E. 2d 429. “A finding of 

constructive notice is a determination the court must make on the fact 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. 

{¶ 10} Plaintiff has not produced any evidence to indicate the length of time that 

the tree limb debris was present on the roadway prior to the incident forming the basis 

of this claim. Plaintiff has not shown that defendant had actual notice of the condition. 

Also, 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 fallen tree limb 

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 fallen tree limb on the roadway. 

{¶ 11} Plaintiff, as a matter of law, in order to prevail, must present evidence with 

regard to the condition of the tree and the trier of fact is precluded from making any 

inference of prior notice unless such evidence is submitted. See Shupe v. Ohio Dept. of 

Transp., Ct. of Cl. No. 2003-04457-AD, 2004-Ohio-644; Blausey v. Ohio Dept. of 

Transp., Ct. of Cl. No. 91-13003, 2005-Ohio-1807; Varns v. Ohio Dept. of Transp., Dist. 

5 (2006), Ct. of Cl. No. 2006-05233-AD; Campbell v. Ohio Dept. of Transp., Ct. of Cl. 

No. 2008-01120-AD, 2008-Ohio-5777; Miller v. Ohio Dept. of Transp., Ct. of Cl. No. 

2008-03971-AD, 2008-Ohio-5912. Plaintiff, in the instant claim, has failed to prove 

defendant had requisite notice of the fallen tree. 

{¶ 12} 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. 

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 her 

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 her property. Hall v. Ohio Department of Transportation (2000), 

99-12963-AD. 
 

 

 

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 

JACQUELYN BYMASTER 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-11145-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: 

Jacquelyn Bymaster Jerry Wray, Director 

207 E. Main Department of Transportation 

New Paris, Ohio 45347 1980 West Broad Street 
 Columbus, Ohio 43223 

RDK/laa 

3/17 

Filed 4/5/11 

Sent to S.C. reporter 7/8/11