Majewski v. Ohio Dept. of Transp., Dist. #3

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[Cite as Majewski v. Ohio Dept. of Transp., Dist. #3, 2008-Ohio-6016.] 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 CHRISTOPHER MAJEWSKI Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT #3 Defendant Case No. 2008-04439-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} On March 23, 2008, at approximately 8:07 p.m., plaintiff, Christopher Majewski, was traveling north on State Route 252 between Snell Road and Redfern Road in Lorain County, when his automobile tire was punctured by an uprooted centerline road reflector laying on the traveled portion of the roadway. Plaintiff recalled he observed about ten uprooted road reflectors on the particular section of State Rout 252 heading south from Redfern Rd. Plaintiff submitted photographs depicting the road reflector that damaged his tire and the roadway area of State Route 252 where the reflector had been anchored prior to the incident forming the basis of this claim. {¶ 2} Plaintiff implied the damage to his automobile tire was proximately caused by negligence on the part of defendant, Department of Transportation ( DOT ), in failing to maintain the roadway free of hazards. Plaintiff filed this complaint seeking to recover $140.40, the cost of a replacement tire. The filing fee was paid. {¶ 3} Defendant denied liability based on the contention that no DOT personnel had any knowledge of the particular loose reflector prior to plaintiff s property damage occurrence. Defendant noted no calls or complaints were received from any entity regarding the loose road reflector which DOT located between mileposts 4.08 and 4.90 on State Route 252 in Lorain County. Defendant asserted plaintiff did not produce any evidence to establish the length of time the uprooted reflector was on the roadway prior to 8:07 p.m. on March 23, 2008. Defendant suggested that the uprooted reflector existed in that location for only a relatively short amount of time before plaintiff s incident. {¶ 4} Defendant argued plaintiff did not offer evidence to show his property damage was proximately caused by conduct attributable to DOT personnel. Defendant explained DOT crews performed various maintenance operations between mileposts 4.08 and 4.90 on State Route 252 in October 2007, December 2007, and February 2008. DOT records show the last time prior to March 23, 2008 that DOT personnel were working in the vicinity of plaintiff s damage event was on February 19, 2008 when pothole patching operations were conducted from milepost 0.00 to 5.55. Defendant stated that if any DOT work crews were doing activities such that if there was a noticeable defect with any raised or loosened pavement markers it would have immediately been repaired. Defendant denied breaching any duty of care owed to plaintiff that resulted in any property damage. {¶ 5} Plaintiff filed a response pointing out he does not know the length of time the raised pavement marker reflector existed on State Route 252 prior to his March 23, 2008 damage occurrence. Defendant related weather records show sufficient snow fell on Lorain County in the thirty-three day period from February 19, 2008 (the day DOT crews performed pothole patching in the vicinity of plaintiff s incident) to March 23, 2008. From reviewing this record, plaintiff asserted DOT crews must have been involved with snow removal operations on State Route 252 during multiple days from February 19, 2008 to March 23, 2008. Plaintiff recalled he spoke with DOT employee Monica Smith who informed him that it is a common occurrence for DOT snow plow trucks to uproot centerline road reflectors while performing snow removal operations. Plaintiff surmised the reflector his car struck was dislodged by a DOT snow plow truck removing snow from State Route 252 at some time during a snow fall period before March 23, 2008. Plaintiff contended defendant was negligent in performing its roadway inspection duties and suggested DOT should be required to conduct frequent inspections during periods of significant snowfall. CONCLUSIONS OF LAW {¶ 6} 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} The duty to remove snow and ice does not supersede the duty to repair pavement defects. The duty to repair defects and the duty to remove roadway snow are concurrently equivalent duties. Farmer v. Department of Transportation (1999), 9902931-AD, jud; Kirschner v. Department of Transportation (1999), 99-04542-AD, jud. The fact that defendant chooses to engage its work force in snow and ice removal is not a defense to failure to timely repair roadway defects. {¶ 8} 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 condition or defect alleged to have caused the accident. McClellan v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388. 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. 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 developed. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no evidence that DOT had any notice of the dislodged reflector on the roadway. However, proof of notice of a dangerous condition is not necessary when defendant s own agents actively cause such condition. See Bello v. City of Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the syllabus; Sexton v. Ohio Department of Transportation (1996), 94-13861. Evidence is inconclusive whether or not the damage-causing reflector was dislodged from the roadway by defendant s personnel. {¶ 9} 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-Ohio2573, 788 N.E. 2d 1088, ¶8, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 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, 30 O.O. 415, 61 N.E. 2d 198, approved and followed. {¶ 10} Plaintiff has not shown, by a preponderance of the evidence, that defendant failed to discharge a duty owed to him, or that his damage was proximately caused by defendant s negligence. Plaintiff has failed to show that the damage-causing reflector was connected to any conduct under the control of defendant or that there was 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. {¶ 11} 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 dislodged reflector. 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 CHRISTOPHER MAJEWSKI Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT #3 Defendant Case No. 2008-04439-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: Christopher Majewski 10421 Manoa Avenue Brooklyn, Ohio 44144 RDK/laa 8/6 James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 Filed 9/8/08 Sent to S.C. reporter 11/19/08

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