Raymond v. Ohio Dept. of Transp.

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[Cite as Raymond v. Ohio Dept. of Transp., 2005-Ohio-6284.] IN THE COURT OF CLAIMS OF OHIO DENNIS RAYMOND : Plaintiff : v. : CASE NO. 2005-02796-AD : MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} On January 23, 2004, at approximately 4:30 p.m., plaintiff, Dennis Raymond, was traveling westbound on State Route 2 between exit 83 and exit 611, when a truck in front of him changed lanes and dislodged a road reflector. The reflector was propelled into the underside of his vehicle. {¶ 2} Plaintiff filed this complaint seeking to recover $273.70, his cost for reimbursement complaint. automobile of the repairs, filing fee the which police he report submitted with and the Plaintiff contends he incurred these damages as a result of negligence on the part of defendant, Department of Transportation, in failing to maintain the roadway. {¶ 3} Defendant denied liability based on the fact it had no knowledge plaintiff s the reflector was property-damage broken occurrence. and detached Defendant prior to asserts it received no calls or complaints prior to plaintiff s incident. Because no complaints were received, defendant had no way of knowing or determining exactly how long the reflector was loose prior to plaintiff s incident. Defendant contends the reflector loosened for only a relatively short amount of time before plaintiff s incident. {¶ 4} Plaintiff has not submitted any evidence to indicate the length of time the reflector was defective prior to the incident forming the basis of this claim. {¶ 5} Defendant denied the roadway reflector was uprooted by any conduct under its control. uprooted by an Defendant asserted the reflector was unidentified motorist. Therefore, defendant contended it cannot be held liable for the act of an unidentified third party. CONCLUSIONS OF LAW {¶ 6} Defendant has the duty to keep the roads in a reasonably safe condition for the motoring public. Knickel v. Ohio Department of Transportation (1976), 49 Ohio App. 2d 335. is not an insurer of its highways. However, defendant See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723. {¶ 7} 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. 282, 285. Strother v. Hutchinson (1981), 67 Ohio St. 2d 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. University (1977), 76-0368-AD. Barnum v. Ohio State 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 failed to sustain such burden. Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio St. 198, approved and followed. {¶ 8} Ordinarily, in a claim involving damages caused by broken road reflectors, plaintiff must prove either: 1) defendant had actual or constructive notice of the defective condition (loosened reflector) and failed to respond in a reasonable time or responded in a negligent manner, or 2) the defendant, in a general sense, maintains its highways negligently. Denis v. Department of Transportation (1976), 75-0287-AD. {¶ 9} 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. {¶ 10} Plaintiff has not produced any evidence to indicate the length of time the damage causing reflector was present in its loosened condition prior to the incident forming the basis of this claim. No evidence has been submitted to show defendant had actual notice of the reflector s condition. Additionally, the trier of fact inference is precluded from making an of defendant s constructive notice, unless evidence is presented in respect to the time the defective condition (loosened reflector) appeared. v. Highway Department (1988), 61 Ohio Misc. 2d 262. Spires There is no indication defendant had constructive notice of the reflector s condition. infer Finally, plaintiff has not produced any evidence to defendant, in a general sense, maintains its highways negligently or that defendant s acts caused the defective condition (loosened reflector). Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD. {¶ 11} evidence, Plaintiff has failed to show, by a preponderance of the that defendant failed to discharge a duty owed to plaintiff, or that plaintiff s injury was proximately caused by defendant s negligence. Plaintiff failed to show the damage- causing object was connected to any conduct under the control of defendant or any negligence on the part of defendant. Taylor v. Transportation Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. Consequently, plaintiff s case is denied. IN THE COURT OF CLAIMS OF OHIO DENNIS RAYMOND : Plaintiff : v. : CASE NO. 2005-02796-AD : ENTRY OF ADMINISTRATIVE DETERMINATION OHIO DEPARTMENT OF TRANSPORTATION : Defendant : : : : : : : : : : : : : : : : : 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. are assessed against plaintiff. Court costs The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal. ________________________________ DANIEL R. BORCHERT Deputy Clerk Entry cc: Dennis Raymond 1321 Lakeview Avenue Lorain, Ohio 44053 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 DRB/laa 10/8 Filed 11/10/05 Sent to S.C. reporter 11/22/05 For Defendant

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