[Cite as Salcius v. Ohio Dept. of Transp., 2009-Ohio-7166.]

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

DEANNA M. SALCIUS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-06958-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Deanna M. Salcius, related she was traveling west on US Route 

20 in Painesville Township in Lake County at 2495 North Ridge Road, when her 2008 

Ford Taurus SEL, “swerved a bit right brushing against a small section of curb and 

brushing the right front tire” of the vehicle. Plaintiff pointed out soon “realized I had a 

flat tire” and when she pulled over she discovered the 2008 Ford Taurus SEL had two 

flat tires. Plaintiff explained she went back to 2495 North Ridge Road to look at the curb 

area her car struck and observed “a large pothole along with a sewer drain and the 

curb.” Plaintiff submitted photographs of the roadway area at 2495 North Ridge Road 

that depict an asphalt topped sewer drain located entirely outside of the regularly 

traveled portion of the roadway. Plaintiff recalled her damage incident occurred at 

approximately 2:24 p.m. on July 7, 2009. Plaintiff implied the damage to her 

automobile, which consisted of tire and wheel damage, was proximately caused by 

negligence on the part of defendant, Department of Transportation (ODOT), in 

maintaining a defective condition on US Route 20. Plaintiff filed this complaint seeking 

to recover $810.62, the total cost of replacement parts and related repair expenses. 
Plaintiff acknowledged she maintains insurance coverage for automotive repair costs 

with a $500.00 deductible and has received reimbursement in the amount of $310.62 

from her insurance carrier. Consequently, pursuant to R.C. 2743.02(D)1 plaintiff’s 

damage claim is limited to $500.00. The filing fee was paid. 

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

personnel had any knowledge of “a deficient sewer grate on US 20 prior to plaintiff’s 

incident.” Defendant asserted plaintiff failed to offer any evidence to establish her 

property damage was proximately caused by any conduct attributable to ODOT. 

Additionally, defendant pointed out the sewer grate plaintiff’s vehicle struck is clearly 

outside the portion of the roadway intended for travel and consequently, ODOT may not 

be held liable for damage caused by conditions located off the roadway. Defendant 

submitted photographs depicting the sewer grate condition that clearly shows the sewer 

grate is located outside the traveled portion of the roadway. The photographs also 

depict a small area of roadway pavement deterioration along the white painted road 

edgeline. This small deterioration does not appear to have been causally related to any 

of the property damage claimed. Defendant argued plaintiff failed to prove her property 

damage was caused by ODOT breaching any duty of care owed to the traveling public 

in regard to roadway maintenance. 

{¶ 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, 788 N.E. 2d 1088, ¶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 

 1 R.C. 2743.02(D) states: 

 “(D) Recoveries against the state shall be reduced by the aggregate of insurance proceeds, 

disability award, or other collateral recovery received by the claimant. This division does not appy to civil 

actions in the court of claims against a state university or college under the circumstances described in 

section 3345.40 of the Revised Code. The collateral benefits provisions of division (B)(2) of that section 
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. 

{¶ 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. 

{¶ 6} 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. However, the particular standard of proof applies 

in situations where a motorist suffers damage from a defective condition located on the 

traveled portion of the roadway. Evidence in the instant claim establishes that the 

sewer grate plaintiff’s car struck was located entirely on the roadway berm. 

{¶ 7} This court has previously held that the Department of Transportation is not 

to be held liable for damages sustained by individuals who used the berm or shoulder of 

a highway for travel without adequate reasons. Colagrossi v. Department of 

Transportation (1983), 82-06474-AD. Generally, a plaintiff is barred from recovery for 

property damage caused by a defect or any condition located off the traveled portion of 

the roadway. 

{¶ 8} The shoulder of a highway is designed to serve a purpose which may 

 

apply under those circumstances.” 
include travel under emergency circumstances. It is for the trier of fact to determine 

whether driving on the shoulder is a foreseeable and reasonable use of the shoulder of 

the highway. Dickerhoof v. City of Canton (1983), 6 Ohio St. 3d 128, 6 OBR 186, 451 

N.E. 2d 1193. If a plaintiff sustains damage because of a defect located off the marked, 

regularly traveled portion of a roadway, a necessity for leaving the roadway must be 

shown. Lawson v. Department of Transportation (1977), 75-0612-AD. Inadvertent 

travel based on inattention is not an adequate reason or necessity for straying from the 

regularly traveled portion of the roadway. Smith v. Ohio Department of Transportation

(2000), 2000-05151-AD. 

{¶ 9} Defendant may 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. 

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. 

{¶ 10} “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 the 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. Evidence available tends to point out the roadway was maintained properly 

under ODOT specifications. Plaintiff failed to prove her damage was proximately 

caused by any negligent act or omission on the part of ODOT or its agents. See Wachs 

v. Dept. of Transp., Dist. 12, Ct. of Cl. No. 2005-09481-AD, 2006-Ohio-7162; Vanderson 

v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-09961-AD, 2006-Ohio-7163; Shiffler v. 

Ohio Dept. of Transp., Ct. of Cl. No. 2007-07183-AD, 2008-Ohio-1600. In fact, the sole 

cause of plaintiff’s damage was her own negligent driving. See Wieleba-Lehotzky v. 

Ohio Dept. of Transp., Dist. 7, Ct. of Cl. No. 2007-07183-AD, 2004-Ohio-4129. Plaintiff 

has not proven defendant maintained a hidden roadway defect. Clevenger v. Ohio 

Dept. of Transportation (1999), 99-12049; Sweney v. Ohio Dept. of Transp., Dist. 8

(2009), 2009-03649-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 

DEANNA M. SALCIUS 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2009-06958-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: 
Deanna M. Salcius Jolene M. Molitoris, Director 

1712 Heather Road Department of Transportation 

Madison, Ohio 440575 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

10/12 

Filed 11/17/09 

Sent to S.C. reporter 3/5/10