[Cite as Platt v. Ohio Dept. of Transp., Dist. 12, 2011-Ohio-3536.]

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

CHARLES JASON PLATT 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DIST. 12 

 Defendant 

Case No. 2010-11447-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Charles Platt, filed this action against defendant, Ohio 

Department of Transportation (ODOT), contending his 2005 Ford Focus was damaged 

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

condition on Interstate 71 in Cuyahoga County. Specifically, plaintiff asserted the tire, 

rim, lugnuts, and wheel alignment on his car were damaged when the vehicle struck a 

piece of wood in the traveled portion of the roadway. Plaintiff described his damage 

incident occurred in the following manner, “after we passed the West 150th exit I hit a 4 

X 4 that was lying in the middle of the freeway.” Plaintiff recalled his damage event 

occurred on May 7, 2010, at approximately 9:00 p.m. In his complaint, plaintiff 

requested damages in the amount of $390.80, the total cost of replacement parts and 

related expense associated with having his car repaired. The $25.00 filing fee was paid 

and plaintiff requested reimbursement of that cost along with his damage claim. 

{¶ 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 at milepost 240.6 on I-71 in Cuyahoga County 

and advised ODOT did not receive any calls or complaints for debris at that location 
despite the fact the particular “section of roadway has an average daily traffic count 

between 94,750 and 98,330 vehicles.” Defendant suggested, “that the debris existed in 

that location for only a relatively short amount of time before plaintiff’s incident.” 

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

the roadway prior to his property damage event. Defendant insisted no ODOT 

personnel had any knowledge of a wooden object at milepost 240.6 on I-71 prior to the 

described incident forming the basis of this claim. Defendant contended plaintiff failed 

to establish the damage-causing debris condition was attributable to any conduct on the 

part of ODOT. Defendant related the ODOT “Cuyahoga County Manager conducts 

roadway inspections on all state roadways within the county on a routine basis, at least 

one to two times a month.” Apparently, no debris was discovered at milepost 240.6 on 

I-71 the last time that section of roadway was inspected before May 7, 2010. The claim 

file is devoid of any inspection record. Defendant did submit a six-month maintenance 

history of the specific roadway area in question which recorded thirty-nine litter patrol 

operations were performed in the relevant area of I-71 during the time frame covered. 

According to the submitted maintenance history, the last time ODOT personnel were 

working in the area was on May 5, 2010, when litter was removed from the area. 

Defendant stated “if ODOT personnel had found any debris it would have been picked 

up.” Defendant argued plaintiff failed to produce evidence to show his property damage 

was proximately caused by negligent maintenance on the part of ODOT. 

{¶ 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. 

{¶ 6} Defendant professed liability cannot be established when requisite notice 

of the damage-causing conditions cannot be proven. However, proof of notice of a 

dangerous condition is not necessary when defendant’s own agents 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 debris condition prior to 9:00 p.m. on May 7, 2010. 

{¶ 7} Ordinarily, to recover in any suit involving injury proximately caused by 

roadway conditions including debris, 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. 

{¶ 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, 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. 

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

the wooden 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 wooden debris 

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 debris on the roadway. 

{¶ 10} Plaintiff has not produced any evidence to infer defendant, in a general 

sense, maintains its highways negligently or that defendant’s acts caused the defective 

condition or conditions. Herlihy v. Ohio Department of Transportation (1999), 99-07011-

AD. 

{¶ 11} Plaintiff has failed to prove, by a preponderance of the evidence, that 

defendant failed to discharge a duty owed to plaintiff, or that plaintiff’s injury was 

proximately caused by defendant’s negligence. Plaintiff failed to show that the damagecausing object at the time of the damage incident was connected to any conduct under 

the control of defendant or any negligence on the part of defendant proximately caused 

the damage. Herman v. Ohio Dept. of Transp. (2006), 2006-05730-AD; Husak v. Ohio 

Dept. of Transp., Ct. of Cl. No. 2008-03963-AD, 2008-Ohio-5179. 
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 

CHARLES JASON PLATT 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION, DISTRICT 12 

 Defendant 

Case No. 2010-11447-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: 

Charles Jason Platt Jerry Wray, Director 

9321 Albion Road Department of Transportation 

North Royalton, Ohio 44133 1980 West Broad Street 

 Columbus, Ohio 43223 

 

SJM/laa 

3/17 
Filed 4/5/11 

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