Radio v. Ohio Dept. of Transp.
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[Cite as Radio v. Ohio Dept. of Transp., 2005-Ohio-3968.] IN THE COURT OF CLAIMS OF OHIO GINA RADIO : Plaintiff : v. : CASE NO. 2005-03083-AD : MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On January 28, 2005, at approximately 7:15 p.m., plaintiff, Gina M. Radio, was traveling west on Interstate 90 near the Lorain Road exit, when a passing semi-truck drove over debris (mudflap) on the road and propelled the debris into the path of plaintiff s vehicle. The airborne mudflap hit the hood of plaintiff s car and bounced to the roadway where plaintiff drove over it causing a flat tire. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $563.94, her total cost of automotive repair resulting from the January 28, 2005, incident. Plaintiff implied the property damage to her car was proximately caused by negligence on the part of defendant, roadway. Department of Transportation, in maintaining the Plaintiff submitted the filing fee. {¶ 3} 3) Defendant denied any liability based on the contention it had no knowledge of any roadway defect or debris on Interstate 90 at milepost 167.70 in Cuyahoga County prior to plaintiff s property damage occurrence. {¶ 4} 4) Plaintiff did not submit any evidence to indicate the length of time the debris condition was on the roadway prior to her January 28, 2005, property damage event. CONCLUSIONS OF LAW {¶ 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. defendant is not an insurer of its highways. However, See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723. {¶ 6} In order to recover on a claim of this type, plaintiff must prove either: 1) defendant had actual or constructive notice of the defect (debris) 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. Department of Transportation (1976), 75-0287-AD. Denis v. For constructive notice to be proven, plaintiff must show sufficient time has elapsed after the dangerous condition (debris) appears, so that under the circumstances, defendant should have acquired knowledge of its existence. Guiher v. Jackson (1978), 78-0126-AD. The trier of fact is precluded from making an inference of defendant s constructive notice, unless evidence is presented in respect to the time the defective condition (debris) appeared on the roadway. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. Evidence has shown defendant did not have any notice, either actual or constructive, of the damage-causing debris. {¶ 7} 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. Ohio St. 2d 282, 285. Strother v. Hutchinson (1981), 67 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. v. Ohio State University (1977), 76-0368-AD. Barnum However, [i]t is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a 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} Plaintiff has not proven, by a preponderance of the evidence, that defendant failed to discharge a duty owed to her or that her 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), 9910909-AD; Witherell v. Ohio Dept. of Transportation (2000), 200004758-AD. Consequently, plaintiff s case is denied. IN THE COURT OF CLAIMS OF OHIO GINA RADIO : Plaintiff : v. : CASE NO. 2005-03083-AD OHIO DEPARTMENT OF : ENTRY OF ADMINISTRATIVE DETERMINATION 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. Court costs are assessed against plaintiff. 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: Gina Radio 387 Columbia Road Bay Village, Ohio Plaintiff, Pro se 44140 Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 6/22 Filed 7/13/05 Sent to S.C. reporter 8/3/05 For Defendant
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