[Cite as Leonard v. Ohio Dept. of Transp., 2010-Ohio-4585.]

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

TOM LEONARD 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-01638-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Tom Leonard, filed this action against defendant, Department of 

Transportation (ODOT), alleging he sustained property damage as a proximate cause of 

negligence on the part of ODOT in conducting snow removal operations on US Route 

20 in Ashtabula County. Plaintiff described his damage incident relating that he was 

operating a snow blower on his home driveway, which is located adjacent to US Route 

20, when “I hit a steel road reflector that was in my driveway.” Plaintiff further related 

the “steel road reflector wedged between the snow blower housing and auger which 

broke the auger drive chain, bent the auger (and) housing.” Plaintiff recalled the 

damage incident occurred on the morning of January 6, 2010 after a snowstorm. 

Plaintiff asserted road reflectors from US Route 20 are routinely uprooted and deposited 

in front of his residence, abutting the roadway, from snow removal operations 

conducted by ODOT. Plaintiff explained he maintains a long driveway at his residence 

and consequently uses a snow blower attached to a lawn tractor to remove snow from 

the driveway, pointing out the driveway area is “too much snow to shovel.” Plaintiff 

provided photographs depicting dislodged road reflectors and a section of roadway area 
where a reflector had been removed. Plaintiff seeks damage recovery in the amount of 

$1,083.61, the cost of a replacement snow blower device. The filing fee was paid. 

{¶ 2} Defendant denied liability in this matter based on the contention that no 

ODOT personnel had any knowledge of a loose reflector on US Route 20 prior to 

plaintiff’s incident. Defendant argued plaintiff failed to produce any evidence to 

establish the length of time the reflector had been dislodged from the roadway prior to 

his January 6, 2010 property damage occurrence. Defendant explained the location of 

the reflector would correspond to “approximately milepost 6.0 on US 20 in Ashtabula 

County.” Defendant suggested “the debris (reflector) existed in that location for only a 

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

{¶ 3} Defendant contended plaintiff did not offer evidence to prove his property 

damage was attributable to conduct on the part of ODOT personnel. Defendant 

acknowledged ODOT crews conducted snow plowing activities on roads in Ashtabula 

County on January 5, 2010 and January 6, 2010. US Route 20 was included in the 

snow plowing activity. Defendant seemingly argued that if this court finds ODOT snow 

plowing uprooted the pavement marker and proximately caused plaintiff’s property 

damage, DOT should be immune from liability. Defendant further argued that snow 

plowing that results in hazardous conditions such as loose road reflectors being 

deposited on the roadway “was necessary and reasonable for the safety of the traveling 

public and done in a manner consistent with normal standards.” Defendant stated R.C. 

5501.411

 grants DOT “the right to remove ice and snow from state highways and the 

authority to do whatever is necessary to conduct such removal activities.” Defendant 

related, “assuming that a snowplow of Defendant did cause the raised pavement marker 

to become dislodged, Defendant contends that it is given statutory authority to do 

whatever is reasonable and necessary to remove snow.” Contrary to defendant’s 

argument concerning “whatever is reasonable and necessary,” the court finds it is 

neither reasonable nor necessary to create a dangerous roadway hazard while in the 

 1 R.C. 5501.41 covering DOT’s discretionary authority to remove snow and ice states: 

 “The director of transportation may remove snow and ice from state highways, purchase the 

necessary equipment including snow fences, employ the necessary labor, and make all contracts 

necessary to enable such removal. The director may remove snow and ice from the state highways 

within municipal corporations, but before doing so he must obtain the consent of the legislative authority 

of such municipal corporation. The board of county commissioners of county highways, and the board of 

township trustees on township roads, shall have the same authority to purchase equipment for the 
course of performing snow removal activities. Wertz v. Ohio Dept. of Transp., Ct. of Cl. 

No. 2008-11656-AD, 2009-Ohio-6605. 

{¶ 4} Alternatively, defendant asserted plaintiff failed to prove his snow blower 

was damaged by a dislodged road reflector. Defendant advised, “Plaintiff could have hit 

a bottle, tire, rock, or piece of wood” that could have been deposited in his driveway 

from a third party not affiliated with ODOT. Defendant has denied liability based on the 

premise the damage-causing object emanated from an unidentified third party and 

therefore, ODOT had no duty to control the conduct of a third person except in cases 

where a special relationship exists between defendant and either plaintiff or the person 

whose conduct needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin Const. Co.

(1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However, defendant may still bear liability 

if it can be established that some act or omission on the part of ODOT was the 

proximate cause of plaintiff’s injury. 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} The credibility of witnesses and the weight attributable to their testimony 

are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 

39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to 

believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964), 

176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court finds the assertions of 

plaintiff persuasive in regard to the contention his snow blower was damaged by a 

reflector that was dislodged from the roadway by an ODOT snow plow. 

{¶ 6} 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 

 

removal of and to remove snow and ice as the director has on the state highway system.” 
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. 

{¶ 7} Defendant has the duty to maintain its highway 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. Additionally, defendant has a duty to exercise 

reasonable care for the motoring public when conducting snow removal operations. 

Andrews v. Ohio Department of Transportation (1998), 97-07277-AD; Peters v. Dept. of 

Transp., Ct. of Cl. No. 2008-11630-AD, 2009-Ohio-3031. 

{¶ 8} 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. However, proof of notice of a dangerous condition is not 

necessary when defendant’s own agents actively cause such condition. 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. In the instant claim, 

plaintiff has offered sufficient proof to establish the damage to his snow blower was 

proximately caused by the acts of defendant’s personnel in conducting snow removal 

operations. See McFadden v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-02881-AD, 

2004-Ohio-3756; also Ruminski v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-05213-AD, 

2005-Ohio-4223; Schultz v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-05125-AD, 2008-

Ohio-6457. 

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

and it is such as should have been foreseen in the 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. 

{¶ 10} Plaintiff has proven his property damage was caused by the acts of ODOT 

personnel. See Vitek v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-09258-AD, jud, 

2005-Ohio-1071; Zhang v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-07811-AD, 2008-

Ohio-7077; Barnett v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-08809-AD, 2009-Ohio1589. Consequently, defendant is liable to plaintiff for the damages claimed, $1,083.61, 

plus the $25.00 filing fee which may be reimbursed as compensable costs pursuant to 

R.C. 2335.19. See Bailey v. Ohio Department of Rehabilitation and Correction (1990), 

62 Ohio Misc. 2d 19, 587 N.E. 2d 990. 

 

 

 

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 

TOM LEONARD 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-01638-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 plaintiff in the amount of $1,108.61, which includes the filing fee. Court costs are 

assessed against defendant. 

 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Tom Leonard Jolene M. Molitoris, Director 

6543 North Ridge Road East Department of Transportation 

Geneva, Ohio 44041 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

5/10 

Filed 5/25/10 

Sent to S.C. reporter 9/17/10