[Cite as Legg v. Ohio Dept. of Transp. , 2011-Ohio-7019.]



# 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

TERRY P. LEGG

Plaintiff

v.

OHIO DEPT. OF TRANSPORTATION

Defendant

Case No. 2011-08938-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

{¶ 1} Plaintiff, Terry Legg, filed this action against defendant, Ohio Department of Transportation (ODOT), contending ODOT's negligence in maintaining a hazardous condition on US 23 southbound proximately causing damage to his vehicle. Specifically, plaintiff asserted the transmission was damaged when the vehicle struck a piece of metal in the traveled portion of the roadway. Plaintiff described his damage incident occurred in the following manner, “[a] car passed me and I glanced at it. When I glanced back at the road, there was a chunk of metal laying in the road. I did not have time to avoid it. When I ran over it, the piece of metal tore a hole in the bottom of the transmission.” Plaintiff’s damage event occurred on June 2, 2011, at approximately 6:15 p.m. In his complaint, plaintiff requested damages in the amount of $1,135.53, the total cost of replacement parts and related expense associated with having his car repaired. The $25.00 filing fee was paid. {¶ 2} Defendant denied liability bas ed on the contention that no ODOT personnel had any knowledge of the damage-causing debris condition prior to plaintiff’sincident. Defendant located the debris “near county milepost 16.28 or state milepost 32.96 on US 23 in Pike 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 14,890 and 16,180 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 metal object near milepost 32.96 on US 23 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 “Pike County Transportation Manager, travels each state highway twice a month in Pike County and looks for potholes, low berms, and other safety hazards.” Apparently, no debris was discovered at milepost 32.96 on US 23 the last time that section of roadway was inspected before June 2, 2011. 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 OhioSt. 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. Townsh ip 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 c annot 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 de fendant’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 6:15 p.m. on June 2, 2011. {¶ 7} Ordinarily, to recover in any suit involving injury proximately caused by roadway conditions incl uding debris, pl aintiff must prove that either: 1) defend ant 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 or evidence toestablish 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, 47 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 metal debris was present on the roadway prior to the incident forming the basis of this claim. 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 metal 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 wasproximately 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 causedthe 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

TERRY P. LEGG

Plaintiff

v.

OHIO DEPT. OF TRANSPORTATION

Defendant

Case No. 2011-08938-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 concurrentl herewith, judgment is rendered in favor of

defendant. Court costs are assessed against plaintiff.

________________________________ DANIEL R. BORCHERT Deputy Clerk

Entry cc:

Terry P. Legg Jerry Wray, Director 1715 Coal Dock Road Department of Transportation Waverly, Ohio 45690 1980 West Broad Street Columbus, Ohio 43223 10/7 Filed 10/18/11 Sent to S.C. reporter 3/13/12