[Cite as Greeno v. Ohio Dept. of Transp., 2012-Ohio-5274.]

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

DAVID L. GREENO 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 

Case No. 2012-02291-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, David L. Greeno, filed this action against defendant, Ohio 

Department of Transportation (“ODOT”), contending that his 2000 Chevy S10 sustained 

suspension damage as the result of driving over the Scioto Bridge on U.S. 22 west of 

Circleville, Ohio for several weeks. Plaintiff seeks damages in the amount of $803.27 

for suspension parts and labor. The $25.00 filing fee was paid. 

{¶2} Defendant denied liability based on the contention that plaintiff knew the 

condition of the roadway in question but continued to use it, at his own risk. Defendant 

pointed out that it only received two complaints about the roadway in question, 

milemarker 17.01 on U.S. 22 in Pickaway County. Both complaints were from plaintiff. 

No other complaints were received within a six-month period even though the average 

daily traffic count was “between 9,920 and 10,610 vehicles.” Defendant related this 

stretch of highways was inspected by ODOT’s Pickaway County Manager who 

determined it was in acceptable condition. Defendant acknowledges that the condition 

of this highway was a reason for concern and a plan had been formulated to repair the 
 

highway based on a planned time table. Finally, the defendant asserts that plaintiff was 

well aware of the condition of the roadway yet he drove back and forth utilizing the 

highway on a daily basis for weeks. Accordingly, defendant contends plaintiff assumed 

the risk of possible damage to his vehicle. Therefore, defendant argues plaintiff’s claim 

should be denied. 

{¶3} Plaintiff did not file a response. 

{¶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-2573,488 N.E. 2d 1088, ¶8 citing Menifee 

v. Ohio Welding Products, Inc., 15 Ohio St. 3d 75, 77, 472 N.E. 2d 707 (1984). 

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., 145 Ohio St. 198, 61 N.E. 2d 198 (1945), approved and 

followed. 

{¶5} Defendant has the duty to maintain its highways in a reasonably safe 

condition for the motoring public. Knickel v. Ohio Department of Transportation, 49 

Ohio App. 2d 335, 361 N.E. 2d 486 (10th Dist. 1976). However, defendant is not an 

insurer of the safety of its highways. See Kniskern v. Township of Somerford, 112 Ohio 

App. 3d 189, 678 N.E. 2d 273 (10th Dist. 1996); Rhodus v. Ohio Dept. of Transp., 67 

Ohio App. 3d 723, 588 N.E. 2d 864 (10th Dist. 1990). 
Case No. 2006-03532-AD - 3 - MEMORANDUM DECISION

{¶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 conditions alleged to have caused the accident. 

McClellan v. ODOT, 34 Ohio App. 3d 247, 517 N.E. 2d 1388 (10th Dist. 1986). 

Defendant is only liable for roadway conditions of which it has notice, but fails to 

reasonably correct. Bussard v. Dept. of Transp., 31 Ohio Misc. 2d 1, 507 N.E. 2d 1179 

(Ct. of Cl. 1986). 

{¶7} It is well established that “[t]he state cannot be sued for its legislative or 

judicial functions or the exercise of an executive or planning function involving the 

making of a basic policy decision which is characterized by the exercise of a high 

degree of official judgment or discretion.” Reynolds v. State ,14 Ohio St. 3d 68, 70, 471 

N.E. 2d 776 (1984); Pottenger v. Ohio Dept. of Transp, 10th Dist. No. 88AP-832(Dec. 7, 

1989). ODOT’s decision as to when to repair a particular roadway, or how to best utilize 

its resources is clearly a policy decision of such nature. The court concludes that 

ODOT is entitled to discretionary immunity for its decisions surrounding the repair of the 

roadway in question especially since ODOT’s Pickaway County Manager determined 

the highway condition was acceptable. 

{¶8} Plaintiff has also presented a claim in which he appears to allege the 

disrepair of the roadway created a nuisance condition. To constitute a nuisance, the 

thing or act complained of must either cause injury to the property of another, obstruct 

the reasonable use or enjoyment of such property, or cause physical discomfort to such 

person. Dorrow v. Kendrick, 30 Ohio Misc. 2d 40, 508 N.E. 2d 684 (Ct. of Cl. 1987). 

{¶9} “[A] civil action based upon the maintenance of a qualified nuisance is 
 

essentially an action in tort for the negligent maintenance of a condition, which, of itself, 

creates an unreasonable risk of harm. ultimately resulting in injury. The dangerous 

condition constitutes the nuisance. The action for damages is predicated upon 

carelessly or negligently allowing such condition to exist.” Rothfuss v. Hamilton 

Masonic Temple Co., 34 Ohio St. 2d 176, 180, 297 N.E. 2d 104 (1973). Under a claim 

of qualified nuisance, the allegations of nuisance merge to become a negligence action. 

Allen Freight Lines, Inc. v. Consol. Rail Corp., 64 Ohio St. 3d 274, 595 N.E. 2d 855 

(1992). Plaintiff has failed to prove, by a preponderance of the evidence, that the 

roadway condition created a nuisance. Plaintiff has not submitted conclusive evidence 

to prove a negligent act or omission on the part of defendant caused the damage to his 

truck. Hall v. Dept. of Transportation, 99-12863-AD (2000). The evidence presented 

does not prove any nuisance condition existed. 

{¶10} Furthermore, evidence presented by defendant reveals the roadway was 

inspected by ODOT’s Pickaway County Manager who found the condition of the 

roadway acceptable. 

{¶11} The common law of Ohio imposes a duty of reasonable care upon 

motorists that includes the responsibility to observe the environment in which one is 

driving. See e.g., Hubner v. Sigall, 47 Ohio App. 3d 15, 17, 546 N.E. 2d 1337 (10th Dist. 

1988). 

{¶12} Implied assumption of the risk, also known as secondary assumption of 

the risk, “is defined as a plaintiff’s consent to or acquiescence in an appreciated, known, 

or obvious risk to plaintiff’s safety.” Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP905, 2010-Ohio-1390, ¶19. “Implied assumption of risk does not relieve a defendant of 
Case No. 2006-03532-AD - 5 - MEMORANDUM DECISION

his duty to the plaintiff.” Wolfe, citing Collier v. Northland Swim Club, 35 Ohio App. 3d 

35, 518 N.E. 2d 1226 (10th Dist. 1987), paragraph two of the syllabus. However, 

because plaintiff knew of the danger involved and acquiesced to it, the plaintiff’s claim 

may be barred. Anderson v. Ceccaddi, 6 Ohio St. 3d 110, 3 N.E. 2d 780 (1983). 

{¶13} Plaintiff failed to prove that his property damage was connected to any 

conduct under the control of defendant, or that defendant was negligent in maintaining 

the roadway area, or that there was any actionable negligence on the part of defendant. 

Taylor v. Transportation Dept., 97-10898-AD (1998); Weininger v. Department of 

Transportation, 99-10909-AD (1999); Witherell v. Ohio Dept. of Transportation, 2000-

04758-AD (2000). Consequently, plaintiff’s claim is denied. 

 

 

 
 

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 

DAVID L. GREENO 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION 

 Defendant 
Case No. 2006-03532-AD - 7 - MEMORANDUM DECISION

Case No. 2012-02291-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: 

David L. Greeno Jerry Wray, Director 

1140 Mill Road Department of Transportation 

Circleville, Ohio 43113 1980 West Broad Street 

 Columbus, Ohio 43223 

DRB/laa 

Filed 7/5/12 

sent to S.C. Reporter 11/14/12