Gaines v. Ohio Dept. of Transp.

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[Cite as Gaines v. Ohio Dept. of Transp., 2008-Ohio-1213.] 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 LESLIE I. GAINES Case No. 2007-07591-AD Plaintiff Deputy Clerk Daniel R. Borchert v. MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION Defendant FINDINGS OF FACT {¶1} 1) On July 16, 2007, at approximately 10:45 a.m., plaintiff, Leslie I. Gaines, was traveling west on State Route 63 in Warren County through a construction area when his automobile hood and windshield were damaged by unidentified debris material. Plaintiff stated, [a] large sized metallic rock like object lobbed out onto the road from the direction of the concrete barrier on the opposite side of the road, bounced off an oncoming semi truck and was lobbed at me and hit my windshield with a loud thud. Plaintiff recalled he stopped and examined his vehicle within minutes of the described incident and discovered a deep scrape on the automobile hood as well as damage to the windshield. Plaintiff noted he observed a construction crew working in the area but did not notice an office type structure and therefore did not report the incident at the scene. Plaintiff subsequently reported the property damage event to defendant, Department of Transportation ( DOT ). {¶2} 2) Plaintiff implied the damage to his car was proximately caused by negligence on the part of defendant in maintaining a roadway construction zone. Plaintiff insisted the object that struck his vehicle emanated from the roadway area where construction activity was being performed. Plaintiff filed this complaint seeking to recover $977.01 for automotive repair expenses, plus $500.00 for car rental costs Case No. 2007-07591-AD -2- MEMORANDUM DECISION related to the July 16, 2007 property damage occurrence. The filing fee was paid. {¶3} 3) Defendant acknowledged the described incident occurred within a construction zone which DOT located between mileposts 0.48 and .083 on State Route 63 in Warren County. Defendant explained DOT contractor, S & K Construction was engaged to perform construction work on State Route 63 during July 2007. However, defendant denied liability in this matter based on the contention that neither DOT nor S & K Construction had any knowledge of the damage-causing debris material prior to plaintiff s damage occurrence. Defendant asserted no calls or complaints were received regarding debris material on State Route 63. {¶4} 4) Furthermore, defendant denied the damage-causing object was construction material used by S & K Construction or connected to any construction activity of DOT s contractor. Defendant asserted plaintiff failed to produce sufficient evidence to establish the object that struck his car emanated from the construction project. Defendant suggested the damage-causing object was displaced by a third party motorist and did not initiate from construction. {¶5} 5) Plaintiff filed a response insisting the object which struck his car did indeed emanate from construction activity conduct on July 16, 2007. Plaintiff described the damage-causing object as some form of rock with metal in it. Plaintiff pointed out construction workers and equipment were present and active at the time. CONCLUSIONS OF LAW {¶6} 1) 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, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723, 588 N.E. 2d 864. {¶7} 2) 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 Case No. 2007-07591-AD -3- MEMORANDUM DECISION constructive notice of the precise condition or defect alleged to have caused the accident. McClellan v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388. Generally, defendant is only liable for roadway condition of which it has notice but fails to reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR 64, 507 N.E. 2d 1179. However, proof or notice of a dangerous condition is not necessary when defendant s own agents actively cause such conditions. See Bello v. City of Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the syllabus; Sexton v. Department of Transportation (1996), 94-13861. In the instant claim, evidence is inconclusive regarding the origin of the debris which damaged plaintiff s vehicle. Defendant insisted the debris condition was not caused by maintenance or construction activity. {¶8} 3) In order to recover in any suit involving injury proximately caused by roadway conditions plaintiff must prove either: 1) defendant had actual or constructive notice of the condition 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. 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, 31 OBR 64, 507 N.E. 2d 1179. {¶9} debris. 4) Plaintiff has not shown defendant had actual notice of the metal 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, 577 N.E. 2d 458. There is no indication defendant had constructive notice of the metal debris. 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. {¶10} 5) 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 Case No. 2007-07591-AD -4- MEMORANDUM DECISION duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy Company, Inc. 99 Ohio St. 3d 79, 81, 2003-Ohio-2573, 788 N.E. 2d 1088, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 472 N.E. 2d 707. 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. Barnum v. Ohio State University (1977), 76-0368-AD. 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. (1945), 145 Ohio St. 198, 61 N.E. 2d 198, approved and followed. {¶11} 6) Evidence in the instant action tends to show plaintiff s damage was caused by an act of an unidentified third party, not DOT. Defendant has denied liability based on the particular premise it had no duty to control the conduct of a third person except in cases where a special relationship exists between defendant and either plaintiff or the person whose conduct needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However, defendant may still bear liability if it can be established if some act or omission on the part of DOT was the proximate cause of plaintiff s injury. This court, as trier of fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477. {¶12} 7) If an injury is the natural and probable consequence of a negligent act and it is such as should have been foreseen in light of all the attending circumstances, the injury is then the proximate result of the negligence. It is not necessary that the defendant should have anticipated the particular injury. It is sufficient that his act is likely to result in an injury to someone. Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302-309, 171 Case No. 2007-07591-AD -5- MEMORANDUM DECISION N.E. 327. {¶13} 8) Plaintiff has failed to establish his damage was proximately caused by any negligent act or omission on the part of DOT. In fact, the sole cause of plaintiff s injury was the act of an unknown third party which did not involve DOT or its agent. Plaintiff has failed to prove, by a preponderance of the evidence, 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 or its agents. 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; Streng v. Dept. of Transp., Ct. of Cl. No. 2007-01771-AD, 2007-Ohio-3099. Case No. 2007-07591-AD -6- MEMORANDUM DECISION 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 LESLIE I. GAINES Plaintiff Case No. 2007-07591-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. ________________________________ DANIEL R. BORCHERT Deputy Clerk Entry cc: Leslie I. Gaines 3570 Ebenezer Road Cincinnati, Ohio 45248 RDK/laa James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223LESLIE I. 12/19 Filed 1/14/08 Sent to S.C. reporter 3/14/08

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