[Cite as Shutway v. Ohio Dept. of Transp., Dist. 11, 2010-Ohio-6198.]

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

KAREN SHUTWAY 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 11 

 Defendant 

Case No. 2010-04866-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Karen Shutway, filed this action against defendant, Department of 

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

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

hazardous condition on State Route 149 in Belmont County. Specifically, plaintiff 

claimed the left rear tire on her car was punctured on February 22, 2010 by a dislodged 

raised pavement marker (RPM or reflector) that was uprooted from the roadway surface 

when ODOT conducted previous snow removal operations on State Route 149. Plaintiff 

related, “[a]fter this incident, I noticed several others (RPMs) that were plucked out by 

ODOT snow plow.” Plaintiff requested damage recovery in the amount of $79.13, the 

cost of a replacement tire. 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 road reflector on State Route 149 prior 

to plaintiff’s property damage occurrence. Defendant denied receiving any calls or 

complaints from any entity regarding a loose road reflector “prior to plaintiff’s incident.” 

Defendant argued plaintiff failed to produce any evidence to establish the length of time 
the RPM was dislodged from the roadway prior to her February 22, 2010 damage event. 

Defendant explained the location of the reflector would correspond to “approximately 

milepost 27.80 on SR 149 in Belmont County.” Defendant suggested, “the loose 

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 her property 

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

acknowledged ODOT crews conducted various maintenance operations in the vicinity of 

milepost 27.80 on seventeen occasions during the six-month period preceding February 

22, 2010. Defendant’s submitted maintenance records show ODOT personnel 

performed “care for shrubs, plants, trees” in the vicinity of milepost 27.80 on the day of 

plaintiff’s property damage event. Defendant stated “[i]f ODOT work crews noticed a 

defect with the reflector . . . they would have immediately repaired it.” Defendant did not 

provide any record of snow removal operations conducted by ODOT personnel on State 

Route 149 during the winter season of 2009-2010. 

{¶ 4} Plaintiff filed a response acknowledging she has “no way of knowing if this 

reflector was loose or even for how long.” Plaintiff again asserted the reflector that 

damaged her tire was dislodged by ODOT crews conducting snow removal operations 

on State Route 149. 

{¶ 5} 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 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. 

{¶ 6} 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. Additionally, defendant has the duty to exercise 

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

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

{¶ 7} Ordinarily in a claim involving roadway defects, plaintiff must prove 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. There is no proof defendant had actual notice or 

constructive notice of the raised pavement marker despite the fact that ODOT crews 

were in the area on February 22, 2010. 

{¶ 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. Evidence is 

inconclusive whether or not the damage-causing pavement marker was originally 

dislodged from the roadway by defendant’s personnel. 

{¶ 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 not shown, by a preponderance of the evidence, that 

defendant failed to discharge a duty owed to her or that her property damage was 

proximately caused by defendant’s negligence. Plaintiff failed to show that the damagecausing reflector was connected to any conduct under the control of defendant, or that 

there was any negligence on the part of defendant. Taylor v. Transportation Dept.

(1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-10909-AD; 

Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. Consequently, 

plaintiff’s claim is denied. 

{¶ 11} Finally, 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. 

Therefore, defendant is not liable for any damage plaintiff may have suffered from the 

dislodged reflector. 

 

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 

KAREN SHUTWAY 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 11 

 Defendant 

Case No. 2010-04866-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: 

Karen Shutway Jolene M. Molitoris, Director 

40300 Poland Farm Road Department of Transportation 

Flushing, Ohio 43977 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

6/30 

Filed 8/17/10 

Sent to S.C. reporter 12/10/10