[Cite as Osborne v. Ohio Dept. of Transp. , 2011-Ohio-6977.]



# 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 SHERMAN J. OSBORNE

Plaintiff

v.

OHIO DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2011-08181-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

{¶1} Plaintiff, Sherman Osborne, filed this action against defendant, Department of Transportation (ODOT), contending that his vehicle was damaged as a proximate result of negligenc e on the part of ODOT in maintaining a road reflector on “US 32 near US 23.” In his complaint, plaintiff provided a narrative description of his damage incident noting that he was driving his car on May 6, 2011, at approximately 8:00 p.m. when he heard a loud noise and then discovered that his tire was damaged. Plaintiff stated that he walked back down the road and found “a safety light” dislodged in the middle of the road. Plaintiff seeks recovery of damages in the amount of $126.95, the stated total amount for a replacement tire and rim. The 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 32 prior to plaintiff’s incident. Defendant located plaintiff’s incident at or near milepost 15.21 on SR 32 in Pike County. Defendant asserted that plaintiff failed to provide any evidence to establish that his property damage was attributable to any conduct on the part of ODOT. Furthermore, defendant asserted that plaintiff failed to provide any evidence indicating the length of time that the road reflector was loose or detached from the roadway surface prior to the May 6, 2011 damage occurrence. Defendant explained that SR 32 was regularlymaintained in the vicinity of plaintiff’s damage incident and a review of the road inspection reports prepared by the Pike County Transportation Manager Adam Smith documents that he inspected the section of SR 32 where plaintiff’s incident occurred on February 28, March 16, March 29, April 11, and April 27, 2011. Defendant maintained that Smith did not locate any loose reflectors during those inspections. {¶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 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 toreasonably 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 May 6, 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 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. {¶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 ofthis 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 that ODOT personnel were routinely performing roadway inspections on the particular section of SR 32 where plaintiff’s damage incident occurred. 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. 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 SHERMAN J. OSBORNE

Plaintiff

v.

OHIO DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2011-08181-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:

Sherman J. Osborne Jerry Wray, Director 516 Maple Avenue Department of Transportation Piketon, Ohio 45661 1980 West Broad Street Columbus, Ohio 43223

9/14 Filed 9/28/11 Sent to S.C. reporter 2/6/12