[Cite as Franklin v. Dept. of Transp., 2011-Ohio-1113.]

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

CAROLYN FRANKLIN 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-08811-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Carolyn Franklin, filed this action against defendant, Department 

of Transportation (ODOT), contending her car was damaged as a proximate cause of 

negligence on the part of ODOT in maintaining a bridge spanning Northfield Road 

(State Route 8) in Cuyahoga County. In her complaint, plaintiff provided a description of 

her damage incident noting: “I was driving Southbound on Northfield Road when a 

piece of the bridge fell on the hood of my car it was a concrete piece of rock.” 

According to plaintiff, the falling debris damaged both the hood and windshield of her 

car. Plaintiff related, “I was able to get it (the damage-causing debris) because it stay 

on the windshield” of her vehicle. Plaintiff did not provide any demonstrative evidence 

depicting the damage-causing debris. Plaintiff recalled her described incident occurred 

on June 4, 2010 at approximately 8:45 p.m. Plaintiff requested damages in the amount 

of $937.54, the stated cost of repairing her automobile. No repair estimates were filed 

with the complaint. The filing fee was paid. 

{¶ 2} Defendant conducted an investigation and determined the described 

damage incident occurred “between mileposts 5.18 to 5.00 on SR 8 in Cuyahoga 

County. Defendant contended, “ODOT denied receiving any prior calls or complaints 
regarding debris falling from any bridge spanning State Route 8.” Furthermore, 

defendant related, “there is no evidence the debris actually came from the bridge.” 

Plaintiff, in her complaint, wrote “a piece of the bridge fell on the hood of my car.” 

Conversely, defendant contended “the evidence suggests the damage (to plaintiff’s car) 

was not caused by debris from the bridge.” Defendant asserted, “[p]laintiff does not 

identify the debris that fell onto her hood when she passed under the bridges on SR 8 

before I-480.” In her complaint, plaintiff noted, “a concrete piece of rock” from the 

bridge structure fell and struck the hood of her vehicle. Defendant explained two 

bridges spanning State Route 8 at milepost 5.08 and 5.06 were inspected on March 3, 

2009; some fifteen months prior to the incident forming the basis of this claim. 

Defendant advised the submitted inspection reports “mention a very small percentage of 

declamations.” The submitted inspection reports in fact mention “minor declamations” 

on the bridges as well as “cracks,” “spalls,” and “debris” on both bridges. Defendant 

denied the falling piece of concrete that damaged plaintiff’s car emanated from any 

bridge spanning State Route 8. 

{¶ 3} 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 an 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. The 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. 

{¶ 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. 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. 

{¶ 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. 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. 

{¶ 6} 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. 

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

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

Ohio Dept. of Transp., Ct. of Cl. No. 2010-03274-AD, 2010-Ohio-5220. Plaintiff has 

proven, by a preponderance of the evidence, that she 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. 

{¶ 8} 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. Alfson. Consequently, defendant is liable to plaintiff for the damage 

claimed, $937.54, 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 

CAROLYN FRANKLIN 

 Plaintiff 

 v. 

DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-08811-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 $962.54, which includes the filing fee. Court costs are 

assessed against defendant. 

 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Carolyn Franklin Jolene M. Molitoris, Director 

4509 Longleaf Department of Transportation 

Warrensville Hts., Ohio 44128 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

12/15 

Filed 1/7/11 

Sent to S.C. reporter 3/4/11