[Cite as Shank v. Ohio Dept. of Transp., Dist. 12, 2011-Ohio-1117.]

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

COLLEEN SHANK 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12 

 Defendant 

Case No. 2010-09141-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Colleen Shank, filed this action against defendant, Department of 

Transportation (ODOT), contending the sunroof on her car was damaged as a 

proximate cause of negligence on the part of ODOT in maintaining an overpass bridge 

spanning Interstate 480 East in Cuyahoga County. In her complaint, plaintiff described 

her damage incident noting she was traveling east on Interstate 480 on June 1, 2010 

when, “an object fell from the overpass right before the Ridge Rd. exit as I was passing 

under the overpass the object hit the center of my sunroof,” shattering the glass. 

Plaintiff submitted photographs depicting the damaged sunroof. The photographs 

depict damage consistent with an object falling and striking the sunroof. Plaintiff did not 

identify the origin of the object that damaged her vehicle. From information provided in 

the complaint it is uncertain whether the damage-causing object was part of the 

overpass bridge structure which had spalled or had some other origin. The damagecausing object was never recovered. Plaintiff requested damage recovery in the 

amount of $323.25, the cost of a replacement sunroof. The filing fee was paid. 

{¶ 2} Defendant conducted an investigation and determined the damagecausing incident occurred at the Idlewood Drive overpass spanning Interstate 480 which 
corresponds to state milepost 14.87 in Cuyahoga County. Defendant contended ODOT 

“did not have notice of any problems with the overpass, and there is no evidence the 

debris actually came from the overpass.” Defendant denied receiving any calls or 

complaints regarding “falling debris” at or near milepost 14.87 prior to June 1, 2010. 

Defendant asserted the particular section of roadway was well patrolled and no 

problems were discovered with the Idlewood Drive overpass spanning Interstate 480 in 

Cuyahoga County. Defendant further asserted plaintiff did not offer evidence to show 

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

ODOT. Defendant advised the overpass at milepost 14.87 was inspected on May 19, 

2009 and the submitted “Bridge Inspection Report” refers to “a very small percentage of 

spalling or delaminations” on the bridge deck structure. The “Bridge Inspection Report” 

references spalls and delaminations on the bridge deck with the bridge floor showing 5-

10% deterioration. Spalling and delamanination were also observed on the 

substructure of the bridge as well as on the bridge approaches. Defendant argued, “the 

evidence suggests the damage was not caused by debris from the bridge.” Apparently, 

the particular overpass bridge was not inspected at any time from May 20, 2010 to June 

1, 2010. 

{¶ 3} 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 a reasonable 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. 
{¶ 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. The trier of fact is precluded from making an inference of 

defendant’s constructive notice, unless evidence is presented in respect to the time the 

defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio 

Misc. 2d 262, 577 N.E. 2d 458. However, proof of notice of a dangerous condition is 

not necessary when defendant’s own personnel passively or actively cause 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} Ordinarily, in a claim involving roadway defects, plaintiff must prove that 

either: 1) defendant had actual or constructive notice of the defective 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. The evidence is inconclusive to establish that 

plaintiff’s damage was proximately caused by negligent bridge maintenance or that the 

damage-causing debris was part of a spall condition. 

{¶ 7} “If an injury is the natural and probable consequence of a negligent act 

and it is such as should have been foreseen in light of all the attending circumstances, 

the injury is then the proximate result of negligence. It is not necessary that the 

defendant should have anticipated the particular injury. It is sufficient that his act is 

likely to result in an injury to someone.” Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d 
155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber Co. v. First National Bank 

of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E. 327. 

{¶ 8} This court has previously held ODOT liable for property damage resulting 

from falling debris. Elsey v. Dept. of Transportation (1989), 89-05775-AD. Plaintiff has 

failed to prove her property damage was proximately caused by debris emanating from 

the Idlewild Drive overpass or any ODOT maintenance activity. Plaintiff has failed to 

produce sufficient evidence to prove her property damage was caused by any known 

debris condition. Consequently, plaintiff failed to prove her damage was attributable to 

any negligent act or omission on the part of ODOT or its agents. See Wachs v. Dept. of 

Transp., Dist. 12, Ct. of Cl. No. 2005-09481-AD, 2006-Ohio-7162; Vanderson v. Ohio 

Dept. of Transp., Ct. of Cl. No. 2005-09961-AD, 2006-Ohio-7163; Shiffler v. Ohio Dept. 

of Transp., Ct. of Cl. No. 2007-07183-AD, 2008-Ohio-1600. 

 

 

 

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 

COLLEEN SHANK 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12 

 Defendant 

Case No. 2010-09141-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: 

Colleen Shank Jolene M. Molitoris, Director 

19846 Henry Road Department of Transportation 

Fairview Park, Ohio 44126 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

12/2 

Filed 1/11/11 

Sent to S.C. reporter 3/4/11