[Cite as Smith v. Ohio Dept. of Transp., 2010-Ohio-5584.]

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

DAVID L. SMITH 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-06575-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, David Smith, filed this action against defendant, Department of 

Transportation (ODOT), contending that his 2004 Pontiac Grand Prix was damaged as 

a proximate cause of negligence on the part of ODOT personnel in maintaining 

hazardous roadway conditions on Interstate 675 in Greene County. Plaintiff recalled the 

windshield on his car was broken on three separate occasions (May 2008, January 12, 

2009 and February 15, 2010) while traveling on Interstate 675. Plaintiff further recalled 

two of his property damage events occurred “while traveling north on 675 just south of 

(the State Route) 235 connection” and the third damage incident occurred when plaintiff 

“was traveling south on 675, just south of the 235 connection.” According to plaintiff, all 

damage incidents occurred when passing motorists “picked up stones from (the) 

highway and sent them flying in my direction just to bounce off my windshield leaving it 

with damage.” Plaintiff claimed the damage-causing debris that broke his windshields 

was actually deteriorated roadway pavement. Plaintiff related “the pavement on I-675 

on either side of 235 has been left to deteriorate for the last 5-6 years.” Plaintiff offered 

the following description of conditions on this particular section of Interstate 675 noting: 
“[t]here are holes in the pavement between both north bound (and) both south bound 

lanes, some patching has been done but it has been breaking out just to become flying 

debris.” In his complaint, plaintiff requested damage recovery in the amount of $300.00, 

his insurance coverage deductible he incurred to replace three automobile windshields. 

The filing fee was paid. 

{¶ 2} Defendant conducted an investigation and determined that the damagecausing incident occurred at state milepost 22.90 on Interstate 675 in Greene County. 

Defendant related “ODOT did not have notice of the debris on I-675 prior to Plaintiff 

Smith’s incident.” Defendant stated “ODOT believes that the debris existed in that 

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

specifically denied that ODOT personnel had any knowledge of a debris condition at 

milepost 22.90 on Interstate 675 prior to the three described property damage 

occurrences. Defendant asserted plaintiff did not produce any evidence to establish the 

length of time the debris conditions were on the roadway prior to the three damage 

incidents. Defendant also asserted that plaintiff did not offer any evidence to show the 

damage-causing debris conditions were attributable to any conduct on the part of 

ODOT. Defendant’s records (copies submitted) show ODOT did not receive any calls 

or complaints from any entity referencing debris on Interstate 675 at milepost 22.90. 

{¶ 3} Additionally, defendant contended plaintiff did not prove his property 

damage was proximately caused by negligent roadway maintenance on the part of 

ODOT. Defendant pointed out the ODOT “Greene 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 22.90 the last 

time that section of Interstate 675 was inspected prior to plaintiff’s three incidents. The 

claim file is devoid of any inspection record. Defendant reviewed the ODOT 

“Maintenance Records” (copy submitted) for the specific area of Interstate 675 covering 

the time frame of plaintiff’s incidents. Defendant’s records show ODOT conducted forty 

litter pickup operations in the area during the period from May 1, 2008 to April 26, 2010. 

According to defendant “if ODOT personnel had found any debris it would have been 

picked up.” 

{¶ 4} Despite filing a response, plaintiff did not supply any evidence to establish 

the length of time the damage-causing debris conditions were on the roadway prior to 
his property damage event. Plaintiff noted “[a]s far as I could tell, my windshields were 

broken by flying stones, which may have come from the broken up pavement between 

the two lanes.” Plaintiff submitted photographs depicting the specific area of Interstate 

675 near the State Route 235 exit, showing large sections where patching repairs have 

been made. Plaintiff related these photographs “show the poor condition of the 

pavement in either the north or southbound lanes.” 

{¶ 5} After reviewing the photographs, the trier of fact finds the roadway 

depicted appears to be in generally good condition with areas of repair not showing 

much if any deterioration. Some loose stone debris appears to be depicted on the 

roadway berm off the traveled portion of the roadway. 

{¶ 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 

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. 

{¶ 7} 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. 

{¶ 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 actively causes 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 

conditions prior to his property damage occurrences. 

{¶ 9} 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 ODOT had actual 

notice of the debris condition. Therefore, in order to recover plaintiff must offer proof of 

defendant’s constructive notice of the condition as evidence to establish negligent 

maintenance. 

{¶ 10} “[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 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. 

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

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

of this claim. 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 that 

the debris condition 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. 

{¶ 12} Evidence in the instant action tends to show plaintiff’s damage was 

caused by acts of third parties not affiliated with ODOT. Defendant has denied liability 

based on the particular premise it 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 if some act or omission on the 

part of ODOT or its agents was the proximate cause of plaintiff’s injury. Plaintiff has 

failed to prove, by a preponderance of the evidence, that defendant failed to discharge a 

duty owed to him, or that his injury was proximately caused by defendant’s negligence. 

Plaintiff failed to show the damage-causing objects at the time of the damage incidents 

were connected to any conduct under the control of defendant or any negligence on the 

part of defendant or its agents. Hall v. Ohio Dept. of Transp. (2006), 2006-05730-AD. 

{¶ 13} Plaintiff has not produced any evidence to infer that 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. 

Defendant submitted evidence showing ODOT personnel were routinely performing 

work activities on the particular section of Interstate 675 where plaintiff’s damage 

incidents occurred. Plaintiff has failed to provide sufficient evidence to prove 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. Hall v. Ohio Department of Transportation

(2000), 99-12963-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 

DAVID L. SMITH 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-06575-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: 

David L. Smith Jolene M. Molitoris, Director 

4675 Steeplechase Drive Department of Transportation 

Fairborn, Ohio 45324 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

7/15 

Filed 7/28/10 

Sent to S.C. reporter 11/15/10