[Cite as Zura v. Ohio Dept. of Transp., 2011-Ohio-1950.]

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

W. JOHN ZURA 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-09663-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, W. John Zura, filed this action against defendant, Department of 

Transportation (ODOT), contending his 2004 Pontiac Grand Prix was damaged as a 

proximate cause of negligence on the part of ODOT in maintaining a raised pavement 

marker (RPM or reflector) on State Route 2 in Erie County. In his complaint, plaintiff 

offered a narrative description of his damage incident noting: “[w]hile driving at about 

60 mph in the right hand lane, another vehicle passed me in the left hand lane, and 

upon crossing lanes, ran over a raised pavement marker, that dislodged from the road 

and struck my vehicle on the left rear door.” Plaintiff recalled the described incident 

occurred on April 15, 2010 at approximately 1:26 p.m. Plaintiff submitted a “Traffic 

Crash Report” compiled by the local Ohio State Highway Patrol (OSHP) which 

contained a handwritten statement from plaintiff addressing his recollection of the April 

15, 2010 property damage event. Plaintiff wrote: “car passed me in the passing lane 

and seen something fly toward my car heard a thud as something hit my car.” 

According to information provided in the OSHP “Traffic Crash Report,” the damagecausing reflector was uprooted from the pavement before the passing motorist struck it. 

Plaintiff requested damage recovery in the amount of $644.33, the complete cost of 
repairing the door on his 2004 Pontiac Grand Prix. The $25.00 filing fee was paid and 

plaintiff requested reimbursement of that cost along with his damage claim. 

{¶ 2} Defendant denied liability in this matter based on the contention that no 

ODOT personnel had any knowledge of a loose or defective RPM on the roadway prior 

to plaintiff’s April 15, 2010 property damage occurrence. Defendant denied receiving 

any calls or complaints from any entity regarding a loose reflector which ODOT located 

“at milepost 6.80 on SR 2 in Erie County.” Defendant advised, “[t]his section of roadway 

has an average daily traffic count between 24,980 and 28,590,” however, no record of 

any prior complaint regarding a dislodged RPM was received. Defendant contended 

plaintiff did not produce any evidence to establish the length of time the dislodged 

reflector was on the roadway at milepost 6.80 prior to 1:26 p.m. on April 15, 2010. 

Defendant suggested the uprooted road reflector condition “existed in that location for 

only a relatively short amount of time before plaintiff’s incident.” 

{¶ 3} Defendant contended plaintiff did not offer any evidence to prove his 

property damage was proximately caused by any conduct attributable to ODOT 

personnel. Defendant explained ODOT conducted various maintenance operations on 

this particular section of State Route 2 during the six-month period preceding April 15, 

2010. Defendant noted that ODOT workers “conducted thirty-one (31) Litter Pick-ups 

on SR 2 for the past six months and there was a crew doing Litter Pick-up on April 13, 

2010, which is two days before plaintiff’s incident.” Apparently, no problems with 

dislodged reflectors were discovered during the time ODOT crews were working on 

April 13, 2010. Defendant stated that if “ODOT work crews were doing activities such 

that if there was a noticeable defect with any raised or loosened pavement markers it 

would have immediately been repaired.” Defendant argued it did not believe ODOT 

breached any duty of care owed to the motoring public in regard to roadway 

maintenance. 

{¶ 4} 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 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. 

{¶ 5} 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. 

{¶ 6} 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 actively causes 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 reflector 

condition prior to 1:26 p.m. on April 15, 2010. 

{¶ 7} Ordinarily, to recover in a suit involving injury proximately caused by 

roadway conditions including uprooted reflectors, plaintiff must prove that either: 1) 

defendant 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 

ODOT had actual notice of the debris condition. Therefore, in order to recover plaintiff 

must offer proof of defendant’s constructive notice of the condition as evidence to 

establish 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, 48 O.O. 231, 105 N.E. 2d 429. “A finding of 

constructive notice is a determination the court must make on the facts 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 debris condition was present on the roadway prior to the incident forming the basis 

of this claim. Additionally, 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 debris condition appeared on the roadway. Spires v. Ohio Department of 

Transportation (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no indication 

that defendant had constructive notice of the dislodged RPM. 

{¶ 10} Evidence in the instant action tends to show the damage-causing reflector 

was originally uprooted by an unidentified third party motorist and subsequently 

propelled into the path of plaintiff’s car by another motorist not affiliated with ODOT. 

Defendant has denied liability based on the particular premise it had no duty to control 

the conduct of a third person except where a special relationship exists between 

defendant and either plaintiff or the person whose conduct needs to be controlled. 

Federal Steel & Wire Corp. v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 
2d 769. However, defendant may still 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. 

Plaintiff has failed to prove, by a preponderance of the evidence, that defendant failed to 

discharge a duty owed to him, or that his injury was proximately caused by defendant’s 

negligence. Plaintiff failed to show the damage-causing 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 or its agents. Hall v. Ohio Dept. of Transp. (2006), 

2006-05730-AD. 

{¶ 11} Plaintiff has not produced any evidence to infer that 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. 

Defendant submitted evidence showing ODOT personnel were routinely performing 

work activities on the particular section of State Route 2 where plaintiff’s damage 

incident occurred. Plaintiff has failed to provide sufficient evidence to prove defendant 

maintained a hazardous condition on the roadway which was the substantial or sole 

cause of his property damage. Plaintiff has failed to prove, by a preponderance of the 

evidence, that any ODOT roadway maintenance activity created a nuisance. Plaintiff 

has not submitted evidence to prove that a negligent act or omission on the part of 

defendant caused the damage to his vehicle. Prstojevic v. Dept. of Transp., Dist. 3, Ct. 

of Cl. No. 2009-08519-AD, 2010-Ohio-2186. 

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 

W. JOHN ZURA 

 Plaintiff 

 v. 
OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2010-09663-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: 

W. John Zura Jolene M. Molitoris, Director 

105 James Street Department of Transportation 

Marblehead, Ohio 43440 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

12/27 

Filed 2/4/11 

Sent to S.C. reporter 4/15/11