[Cite as Caruthers v. Univ. of Akron, 2010-Ohio-5903.]

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

ROBERT TODD CARUTHERS 

 Plaintiff 

 v. 

UNIVERSITY OF AKRON 

 Defendant 

Case No. 2009-06141-AD 

Judge Clark B. Weaver Sr. 

ENTRY REVERSING ADMINISTRATIVE DETERMINATION

{¶ 1} This case came to be heard by the court upon defendant’s motion for 

court review of the clerk’s determination pursuant to R.C. 2743.10(D). On November 

10, 2009, the deputy clerk issued an order compensating plaintiff for damages caused 

to his vehicle when it was struck by a malfunctioning traffic gate arm while he was 

attempting to exit a parking lot on defendant’s campus. The deputy clerk found that the 

traffic gate and the mechanism which operated it were under the exclusive control of 

defendant, and that defendant was therefore liable for any malfunction that caused 

damage. 

{¶ 2} On December 10, 2009, defendant filed its motion for court review. In the 

motion, defendant asserts that the deputy clerk applied the incorrect legal standard. 

{¶ 3} In order for plaintiff to prevail upon his claim of negligence, he must prove 

by a preponderance of the evidence that defendant owed him a duty, that defendant’s 

acts or omissions resulted in a breach of that duty, and that the breach proximately 

caused his injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 81, 2003-

Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. 
Case No. 2009-06141-AD - 2 - ENTRY

{¶ 4} “In premises liability situations, the duty owed by a landowner to 

individuals visiting the property is determined by the relationship between the parties.” 

Chovan v. Dehoff Agency, Inc., Stark App. No. 2009 CA 00114, 2010-Ohio-1646, ¶19, 

citing Light v. Ohio University (1986), 28 Ohio St.3d 66. “[B]usiness invitees are 

persons who come upon the premises of another, by invitation, express or implied, for 

some purpose which is beneficial to the owner.” Light at 68. Plaintiff established that 

he used a “key card” to activate the gate arm, that the arm then raised, and as he 

started to drive out of the parking lot the gate arm descended, striking his vehicle. 

{¶ 5} The court finds that plaintiff had the status of an invitee, and, accordingly, 

that defendant owed him a duty to exercise reasonable care in keeping the premises in 

a safe condition and warning him of any latent or concealed dangers of which defendant 

had knowledge. Perry v. Eastgreen Realty Company (1978), 53 Ohio St.2d 51, 52-53; 

Presley v. Norwood (1973), 36 Ohio St.2d 29, 31; Sweet v. Clare-Mar Corp., Inc.

(1987), 38 Ohio App.3d 6. 

{¶ 6} Plaintiff bears the burden of proof to demonstrate that defendant had 

notice, either actual or constructive, of a hazard. Williams v. Ohio Dept. of Rehab. & 

Corr. (1991), 61 Ohio Misc.2d 699, 702-703. The distinction between actual and 

constructive notice is in the manner in which notice is obtained rather than in the 

amount of information obtained. Whenever the trier of fact is entitled to find from 

competent evidence that information was personally communicated to or received by 

the party, the notice is actual. Constructive notice is that notice which the law regards 

as sufficient to give notice and is regarded as a substitute for actual notice. In re Estate 

of Fahle (1950), 90 Ohio App. 195, 197. 

{¶ 7} In the memorandum decision, the deputy clerk noted that plaintiff had 

provided evidence that two other individuals sustained damage to their vehicles from 

malfunctioning gate arms at parking lots located on defendant’s premises: one incident 

occurred on July 17, 2009, another on July 21, 2009. However, plaintiff’s incident 
Case No. 2009-06141-AD - 3 - ENTRY

occurred on June 18, 2009, prior to the other occurrences. Therefore, the other 

incidents cannot be used to establish notice of the defective gate arm. 

{¶ 8} The doctrine of res ipsa loquitur is a rule of evidence that permits plaintiff 

to prove negligence circumstantially upon showing that: 1) the instrumentality that 

caused the harm was in the exclusive control of defendant; and 2) the event that caused 

the harm was not of the type that would normally occur in the absence of negligence. 

Wiley v. Gibson (1990), 70 Ohio App.3d 463. 

{¶ 9} Upon careful consideration of the material contained in the case file and 

the decision of the deputy clerk, the court finds that there is substantial error in the 

decision. Specifically, the deputy clerk’s finding on page 4 of the memorandum decision 

that “[t]he traffic gate and the mechanism which governs it is under the exclusive control 

of defendant” and, “[t]hus, defendant will be liable for any malfunction which causes 

damage” is not supported by the evidence. The court finds that the doctrine of res ipsa 

loquitur is inapplicable because the traffic gate arm was not under the exclusive control 

of defendant; rather, it was located in an outdoor parking lot where it could be affected 

by conditions such as adverse weather or vandalism. In addition, the event that caused 

the harm to plaintiff’s vehicle could occur in the absence of defendant’s negligence. 

Indeed, a computer malfunction or other product defect would implicate the product 

manufacturer rather than defendant. See Sant v. Hines Interests Ltd. Partnership, 

Franklin App. No. 05AP-586, 2005-Ohio-6640. Defendant established by affidavit that 

it had no record of any complaints regarding the traffic gate arm malfunctioning prior to 

plaintiff’s incident. Therefore, the court finds that plaintiff failed to prove by a 

preponderance of the evidence that defendant had actual or constructive notice of a 

defect in the traffic gate arm prior to the arm striking his vehicle. 

{¶ 10} Accordingly, defendant’s motion for court review is GRANTED. The 

November 10, 2009 order of the deputy clerk granting plaintiff’s claim is VACATED. 

Judgment is rendered in favor of defendant. Pursuant to R.C. 2743.10(D), no further 

appeal may be taken from this judgment. Court costs are absorbed by the court. 
Case No. 2009-06141-AD - 4 - ENTRY

 _____________________________________ 

 CLARK B. WEAVER SR. 

 Judge 

cc: 

 

Robert Todd Caruthers 

1643 11th Street 

Cuyahoga Falls, Ohio 44221 

M. Celeste Cook 

Associate Vice President 

 and Assistant Attorney General 

302 Buchtel Mall 

Akron, Ohio 44325-4706 

HTS/cmd

Filed November 5, 2010 

To S.C. reporter December 1, 2010