[Cite as Atkins v. Dept. of Transp., 2010-Ohio-3934.]

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

RICHARD E. ATKINS 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-09426-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Richard E. Atkins, asserted his 1994 Ford Mustang was damaged 

when the vehicle struck “a six foot wood 4" X 4" timber” while traveling north on 

Interstate 75 “2/10 mile south of Harrison Ave. exit” in Hamilton County. Plaintiff 

recalled the damage incident occurred on October 29, 2009 at approximately 4:10 a.m. 

{¶ 2} Plaintiff contended the damage to his car was proximately caused by 

negligence on the part of defendant, Department of Transportation (ODOT), in failing to 

maintain the highway free of hazardous debris. Consequently, plaintiff filed this 

complaint seeking to recover $719.67, the stated cost of replacement parts and related 

repair expense. The filing fee was paid. 

{¶ 3} Defendant conducted an investigation and determined the damagecausing incident occurred at state milepost 2.20 on Interstate 75 in Hamilton County. 

Defendant asserts that it had no “notice of the debris on I-75 prior to” the damagecausing incident. Defendant, “believes that the debris existed in that location for only a 

relatively short amount of time before plaintiff’s incident.” Defendant asserted plaintiff 

failed to produce any evidence to establish the length of time the debris condition 
existed prior to 4:10 a.m. on October 29, 2009. Defendant also asserted plaintiff did not 

offer evidence to show the damage-causing debris condition was attributable to any 

conduct on the part of ODOT. 

{¶ 4} Defendant pointed out that ODOT’s “Hamilton 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 2.20 on 

Interstate 75 the last time that specific section of roadway was inspected prior to 

October 29, 2009. Defendant reviewed a six-month maintenance history of the area in 

question and found twenty-nine litter patrols were performed, the last being on October 

19, 2009, ten days before plaintiff’s incident, and according to defendant any debris 

found would have been picked up. 

{¶ 5} 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. 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. Defendant professed liability cannot be 

established when requisite notice of the damage-causing conditions cannot be proven. 

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. However, proof of a dangerous condition is not necessary when 

defendant’s own agents 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. Plaintiff has 
failed to produce sufficient evidence to prove his property damage was caused by a 

defective condition created by ODOT. 

{¶ 6} Generally, in order to recover in any suit involving injury proximately 

caused by roadway conditions including debris, plaintiff must prove either: 1) defendant 

had actual or constructive notice of the debris 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 produced any evidence to indicate the length of time the 

debris condition was present on the roadway prior to the incident forming the basis of 

this claim. No evidence has been submitted to show defendant had actual notice of the 

debris. Additionally, 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 

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 defendant had constructive 

notice of the debris. 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. Herlihy v. Ohio Department of Transportation (1999), 99-07011-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 

RICHARD E. ATKINS 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 
Case No. 2009-09426-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: 

Richard E. Atkins Jolene M. Molitoris, Director 

7826 Bridge Point Drive Department of Transportation 

Cincinnati, Ohio 45248 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

3/30 

Filed 4/15/10 

Sent to S.C. reporter 8/20/10