Phillips v. Ohio Dept. of Transp.
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[Cite as Phillips v. Ohio Dept. of Transp., 2007-Ohio-651.] 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 SHAUN G. PHILLIPS Case No. 2006-05462-AD Plaintiff Deputy Clerk Daniel R. Borchert v. MEMORANDUM DECISION DEPARTMENT OF TRANSPORTATION Defendant [Cite as Phillips v. Ohio Dept. of Transp., 2007-Ohio-651.] FINDINGS OF FACT {¶1} 1) On August 11, 2006, at approximately 3:30 p.m., plaintiff, Shaun G. Phillips, was traveling north on Interstate 77, headed into downtown Cleveland, near exit 160 when a passing automobile struck a large piece of sheet wood laying on the roadway and propelled the wood debris into the path of plaintiff s automobile. The flying debris caused substantial damage to plaintiff s vehicle. {¶2} 2) Consequently, plaintiff filed this complaint seeking to recover $1,579.50, his cost of automotive repair and related expenses which he contends was incurred as a result of negligence on the part of defendant, Department of Transportation, in maintaining the roadway. Plaintiff submitted the filing fee. {¶3} 3) Defendant has denied any liability for plaintiff s damage. Defendant denied having any knowledge of the wood debris condition prior to plaintiff s incident. Plaintiff has failed to produce any evidence establishing the length of time the debris condition was on the roadway prior to his property damage occurrence. Defendant conducts frequent litter inspections and litter pick-up operations in the area of plaintiff s August 11, 2006, property damage event. Defendant denied receiving any calls or complaints about wood debris on the roadway at milepost 160.10 on Interstate 77 in Cuyahoga County (the approximate location of plaintiff s damage occurrence). Defendant suggested the debris existed at that location, for only a relative short amount of time before plaintiff s incident. CONCLUSIONS OF LAW {¶4} Defendant has the duty to maintain its highway in a reasonably safe condition for the motoring public. Knickel v. Ohio Department of Transportation (1976), 49 Ohio App. 2d 335. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723. {¶5} In order to recover in any suit involving injury proximately caused by roadway conditions including debris, plaintiff must prove either: 1) defendant had actual or constructive notice of the 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. Denis v. Department of Transportation (1976), 75-0287-AD. {¶6} Defendant is only liable for roadway conditions of which it has notice, but fails Case No. 2006-05462-AD -3- MEMORANDUM DECISION to reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1. {¶7} Plaintiff has not produced any evidence to indicate the length of time the debris condition was present on the roadway prior to the incident forming the basis of this claim. No evidence has been submitted to show defendant had actual notice of the debris. 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 the debris appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262. There is no indication defendant had constructive notice of the debris. {¶8} Finally, plaintiff has not produced any evidence to infer 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. Therefore, defendant is not liable for any damage plaintiff may have suffered from the roadway debris. [Cite as Phillips v. Ohio Dept. of Transp., 2007-Ohio-651.] 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 SHAUN G. PHILLIPS Plaintiff Case No. 2006-05462-AD Deputy Clerk Daniel R. Borchert v. OHIO DEPARTMENT OF TRANSPORTATION 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: Shaun G. Phillips 25820 Tungsten Road Apt. 1003 Euclid, Ohio 44132 Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 12/15 Filed 1/5/07 Sent to S.C. reporter 2/15/07
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