[Cite as Parsons v. Ohio Dept. of Transp., 2011-Ohio-5323.]

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

MARK E. PARSONS 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2008-11290 

Judge Joseph T. Clark 

Magistrate Anderson M. Renick 

MAGISTRATE DECISION

{¶1} Pursuant to Civ.R. 53, Magistrate Anderson M. Renick was appointed to 

conduct all proceedings necessary for decision in this matter. 

{¶2} Plaintiff brought this action against defendant, the Ohio Department of 

Transportation (ODOT), alleging negligence. The issues of liability and damages were 

bifurcated and the case proceeded to trial on the issue of liability. 

{¶3} Plaintiff alleges that defendant failed to maintain a drainage ditch that runs 

alongside State Route (SR) 555 and that, as a result of such failure, the drainage 

system became obstructed causing water and debris to flow onto plaintiff’s property 

during a rainstorm on or about June 6, 2008. Plaintiff testified that rain water 

accumulated on his property and deposited dirt and a “black, mirky” substance which 

contaminated his garden and a spring that he used to water livestock. (Plaintiff’s 

Exhibits A1-12 and B1-14.) 

{¶4} In order for plaintiff to prevail under a theory of negligence, plaintiff must 

establish that ODOT owed plaintiff a duty to maintain the drainage system in working 
Case No. 2008-11290 - 2 - MAGISTRATE DECISION

order, that ODOT’s acts or omissions resulted in a breach of that duty, and that plaintiff 

suffered damages as a proximate result thereof. Strother v. Hutchinson (1981), 67 Ohio 

St.2d 282. The duty element of a negligence claim may be established by common law, 

legislative enactment, or the particular circumstances of a given case. Wallace v. Ohio 

Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, ¶23. 

{¶5} Pursuant to R.C. 5501.11(A), ODOT is responsible for establishing “state 

highways on existing roads, streets, and new locations and [to] construct, reconstruct, 

widen, resurface, maintain, and repair the state system of highways and the bridges and 

culverts thereon.” 

{¶6} As a general rule, “[w]here damage to one property is alleged by water runoff created by an adjacent property owner, Ohio has adopted a reasonable-use rule with 

respect to water run-off. McGlashan v. Spade Rockledge Terrace Condo Dev. Corp. 

(1980), 62 Ohio St.2d 55, 60.” Peters v. Angel’s Path, LLC, Erie App. No. E-06-059, 

2007-Ohio-7103, ¶33. Similarly, “a possessor of land is not unqualifiedly privileged to 

deal with surface water as he pleases, nor absolutely prohibited from interfering with the 

natural flow of surface waters to the detriment of others. Each possessor is legally 

privileged to make a reasonable use of his land, even though the flow of surface waters 

is altered thereby and causes some harm to others. He incurs liability only when his 

harmful interference with the flow of surface water is unreasonable.” Id., quoting 

McGlashan, at the syllabus. The reasonableness of an interference is determined by 

the trier of fact. Id. 

{¶7} ODOT may be held liable for damage caused by defects, or dangerous 

conditions, on state highways where it has notice of the condition, either actual or 

constructive. McClellan v. Ohio Dept. of Transp. (1986), 34 Ohio App.3d 247, 

paragraph one of the syllabus. “Actual notice exists where, from competent evidence, 

the trier of fact can conclude the pertinent information was personally communicated to, 

or received by, the party.” Kemer v. Ohio Dept. of Transp., Franklin App. No. 09AP248, 2009-Ohio-5714, ¶21, citing In re Fahle’s Estate (1950), 90 Ohio App. 195, 197. 
Case No. 2008-11290 - 3 - MAGISTRATE DECISION

Constructive notice is that notice which the law regards as sufficient to give notice and 

is regarded as a substitute for actual notice. Id. at ¶24. 

{¶8} According to plaintiff, he contacted defendant’s District 10 office several 

times after the incident and defendant’s employees inspected his property on several 

occasions. Plaintiff’s complaints to defendant were documented and forwarded to 

James Kemp, a maintenance engineer for defendant. (Defendant’s Exhibit E.) 

According to defendant’s records, Kemp visited the site on June 11, 2008, and on the 

same date he scheduled “a ditching crew with a gradall to re-establish” the ditch. 

Plaintiff testified that after one such inspection Kemp informed him that defendant would 

clean the ditch. Plaintiff also met with Robert Roush, a transportation engineer who 

worked in defendant’s District 10 office in Marietta, Ohio. Both Kemp and Roush 

advised plaintiff that defendant was not responsible for cleaning any debris on plaintiff’s 

property. 

{¶9} At trial, Roush identified relevant portions of defendant’s location and design 

manual which sets forth standards for designing and maintaining roadway drainage 

ditches. (Defendant’s Exhibit F.) According to the manual, drainage ditches 

constructed along relatively low-traffic highways, such as SR 555, were designed based 

upon a “five-year frequency storm.” Roush testified that an unusually heavy rain could 

cause a properly constructed and maintained drainage ditch to overflow. 

{¶10} Roush stated that defendant’s maintenance records show that on 

March 5, 2008, defendant’s employees cleaned all the drainage structures on SR 555 in 

District 10, in preparation for the resurfacing project. (Defendant’s Exhibit D.) Roush 

related that it was defendant’s practice to inspect the depth and width of roadway 

ditches prior to resurfacing. Roush testified that a private contractor, Shelly & Sands, 

Inc., had worked on a resurfacing project on SR 555 from May through mid-July 2008. 

According to Roush, defendant did not receive any complaint regarding drainage on SR 

555 between March and June 2008. Roush testified that he spoke with plaintiff after the 
Case No. 2008-11290 - 4 - MAGISTRATE DECISION

incident and that he did not notice any defect when he inspected the ditch on 

September 18, 2008. 

{¶11} The evidence shows that defendant’s employees responded to 

plaintiff’s complaints and inspected the drainage ditches soon after they were notified of 

the overflow on plaintiff’s property. Roush’s testimony regarding the maintenance of 

the ditches convinces the court that defendant had neither actual nor constructive notice 

of any obstruction or defect which would cause the drainage system to overflow. 

Accordingly, the court finds that plaintiff has failed to prove that defendant committed a 

breach of its duty to maintain the highway drainage ditch. 

{¶12} Furthermore, even if defendant had committed a breach of its duty, to 

prevail on his negligence claim plaintiff must establish that such breach proximately 

caused damage to his property. On cross examination, plaintiff acknowledged that he 

had received a letter from Anthony Ruggiero, an environmental permitting and 

compliance officer for Shelly & Sands, Inc., wherein Ruggiero reported results of tests 

on both soil and water samples that were taken from plaintiff’s property on September 3, 

2008. (Defendant’s Exhibit A.) According to Ruggiero, Stantec Consulting Services, 

Inc. performed tests which “show no detectable hydrocarbons” in the spring water 

samples and “no increase in hydrocarbons above the control soil sample.” In his report, 

Ruggiero states that he conducted a site inspection of plaintiff’s property and detected 

“no signs consistent with an asphalt emulsion run off,” such as “black asphalt sticking to 

vegetation, and black stringing asphalt floating and/or sticking to algae in the spring.” 

Plaintiff testified that he believed the black, mirky substance was residue from the 

roadway; however, he admitted that he did not know what the substance was and that 

he did not observe the substance wash off the roadway. Although photographs of 

plaintiff’s property show a few areas where somewhat murky puddles of water had 

accumulated on soil and vegetation, plaintiff failed to show that the substance damaged 

his property. 
Case No. 2008-11290 - 5 - MAGISTRATE DECISION

{¶13} For the foregoing reasons, the court finds that plaintiff has failed to 

prove his negligence claim. Accordingly, judgment is recommended in favor of 

defendant. 

{¶14} A party may file written objections to the magistrate’s decision within 

14 days of the filing of the decision, whether or not the court has adopted the decision 

during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files 

objections, any other party may also file objections not later than ten days after the first 

objections are filed. A party shall not assign as error on appeal the court’s adoption of 

any factual finding or legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely 

and specifically objects to that factual finding or legal conclusion within 14 days of the 

filing of the decision, as required by Civ.R. 53(D)(3)(b).

 _____________________________________ 

 ANDERSON M. RENICK 

 Magistrate 

cc: 

 

Christopher P. Conomy 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Mark E. Parsons 

14653 State Route 555 

Cutler, Ohio 45724 

AMR/dms

Filed September 14, 2011 

To S.C. reporter October 13, 2011