[Cite as Alfson v. Ohio Dept. of Transp., 2010-Ohio-5220.]

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

DENNIS ALFSON 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-03274-AD 

Clerk Miles C. Durfey 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Dennis Alfson, filed this action against defendant, Department of 

Transportation (ODOT), contending that his truck was damaged as a proximate cause 

of negligence on the part of ODOT in maintaining an Interstate 75 bridge spanning the 

Ohio Turnpike in Wood County. Plaintiff explained that he was traveling on the Ohio 

Turnpike on November 8, 2009, “about noon” and as his truck passed under “the Ohio 

Turnpike, Route 80” overpass bridge (Interstate 75), a “chunk of concrete” spalled from 

the bridge striking the front of his truck causing extensive damage to the vehicle. 

Plaintiff seeks damage recovery in the amount of $2,500.00 the statutory maximum 

allowed under R.C. 2743.10. Plaintiff submitted an estimate for truck repair in the 

amount of $2,741.90. The filing fee was paid. 

{¶ 2} Defendant denied liability based on the contention that no ODOT 

personnel had any knowledge with the overpass bridge spanning the Ohio Turnpike or 

Interstate 80 prior to plaintiff’s damage event. Defendant related that ODOT records at 

the “district office in Wood County show no reports of falling debris prior to plaintiff’s 

incident.” Defendant further related that “the evidence suggests the damage (to 
plaintiff’s vehicle) was not caused by debris from the bridge.” Defendant acknowledged 

that plaintiff called the local ODOT office on November 12, 2009 and an ODOT 

employee was dispatched to the bridge site to investigate the matter of bridge spalling. 

Defendant submitted a copy of an e-mail from ODOT employee, Herman L. Munn, who 

inspected the Interstate 75 bridges on November 12, 2009. Munn wrote, “I check I80/90 WB overpass under I-75 all three bridges, (I) did not see any significant spallings 

that could have fell off bridge.” 

{¶ 3} Defendant submitted two photographs (taken April 13, 2010) depicting the 

bridge in question. One photograph depicts the bridge deck under Interstate 75 

spanning westbound Interstate 80. Defendant observed this photograph does not show 

any spalling or cracking on the depicted bridge deck. The trier of fact did not find any 

deck deterioration depicted in reviewing the photograph. Defendant pointed out the 

second photograph “shows some debris on the eastbound direction of I-80 and plaintiff 

was traveling in the westbound direction of I-80.” After reviewing this photograph, the 

trier of fact finds the multiple debris shown on the eastbound shoulder of Interstate 80, 

in all probability emanated from spalling on the overpass bridge structure. Furthermore, 

the trier of fact finds that the debris depicted could have emanated from the bridge 

structure in the westbound lanes and then been propelled into the eastbound shoulder 

area. 

{¶ 4} Defendant asserted that plaintiff failed to produce evidence to prove his 

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

ODOT. Defendant advised that ODOT “maintains an active maintenance history for I75 and there were eighty-two (82) maintenance repairs in the northbound and 

southbound direction of I-75 in the past six months before plaintiff’s incident.” 

Defendant noted that none of the maintenance activities “revealed any problems with 

the overpass.” Defendant contended that plaintiff failed to prove his property damage 

was attributable to conduct on the part of ODOT personnel. 

{¶ 5} Plaintiff filed a response pointing out that the submitted photograph 

“showed that concrete from this bridge is spalling.” Although plaintiff acknowledged that 

the spalling debris was in the opposite lane of travel he argued, “it is reasonable to 

assume the bridge would have the same problems on each lane of travel.” Plaintiff 

further argued that since defendant conducted eighty-two maintenance operations in the 
vicinity of his incident during the preceding six months ODOT personnel “should have 

noticed the condition (of the overpass bridge) prior to the incident.” Plaintiff contended 

that defendant was negligent in not correcting a known dangerous condition prior to the 

November 8, 2009 damage event. 

{¶ 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 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. 

{¶ 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. 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 

defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio 

Misc. 2d 262, 577 N.E. 2d 458. However, proof of notice of a dangerous condition is 

not necessary when defendant’s own personnel passively or 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. 

{¶ 9} Ordinarily, in a claim involving roadway defects, plaintiff must prove that 

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. The evidence points to the conclusion that 

plaintiff’s damage was proximately caused by negligent bridge maintenance. 

{¶ 10} This court has previously held ODOT liable for property damage resulting 

from falling debris. Elsey v. Dept. of Transportation (1989), 89-05775-AD. Plaintiff has 

proven, by a preponderance of the evidence, that he sustained property damage as a 

result of defendant’s negligence regarding bridge maintenance. Brickner v. ODOT

(1999), 99-10828-AD; Rini v. ODOT (1997), 97-05649-AD, McTear v. Dept. of Transp., 

Dist. 12, Ct. of Cl. No. 2008-09139-AD, 2008-Ohio-7118. 

{¶ 11} 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. In the instant action, the trier of fact 

finds that the statements of plaintiff concerning the origin of the damage-causing debris 

are persuasive. Consequently, defendant is liable to plaintiff for the damage claimed, 

$2,500.00, 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 

DENNIS ALFSON 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant 

Case No. 2010-03274-AD 

Clerk Miles C. Durfey 

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 $2,525.00, which includes the filing fee. Court costs are 

assessed against defendant. 

 

 MILES C. DURFEY 

 Clerk 

Entry cc: 

Scot A. Stevenson Jolene M. Molitoris, Director 
441 Wolf Ledges Parkway #400 Department of Transportation 

Akron, Ohio 44311 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

6/3 

Filed 6/21/10 

Sent to S.C. reporter 10/22/10