[Cite as Peters v. Dept. of Transp., 2009-Ohio-3031.]
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
KEVIN L. PETERS
Plaintiff
v.
DEPARTMENT OF TRANSPORTATION
Defendant
Case No. 2008-11630-AD
Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION
{¶ 1} On December 6, 2008, plaintiff, Kevin L. Peters, was traveling on State
Route 170 in Calcutta, Ohio, when his 2008 Jeep Liberty struck a loose manhole cover
laying on the roadway. Plaintiff stated, “I struck the cover with my left front tire, and the
cover flipped up and hit the left side of my 2008 Jeep Liberty.” Plaintiff pointed out that
at the time of his damage incident State Route 170 was snow covered and snow
removal work crews employed by defendant, Department of Transportation (“DOT”),
were actively engaged in plowing the roadway. Plaintiff asserted that a DOT plow truck
“had caught a manhole cover and lifted it from the manhole.” There is no indication
plaintiff actually witnessed a DOT snow plow loosen a manhole cover on State Route
170 in Calcutta, Ohio. Plaintiff related, “[a]t the time I struck the cover, (he did notice a
DOT) truck had pulled off onto a side road and stopped.”
Plaintiff contended the
damage to his vehicle from striking the loose manhole cover was proximately caused by
negligence on the part of defendant in conducting snow removal operations on State
Route 170 in Columbiana County. Consequently, plaintiff filed this complaint seeking to
recover $736.75, the total cost of automotive repair he incurred resulting from the
December 6, 2008 damage occurrence. The filing fee was paid.
{¶ 2} Defendant denied liability in this matter based on the contention that no
DOT personnel had any knowledge of a loose manhole cover on the roadway prior to
plaintiff’s property damage event. Defendant stated DOT “records indicate that no calls
or complaints were received from the State Highway Patrol, Columbiana County
Sheriff’s Department or a person from the traveling public regarding” the particular loose
manhole cover which defendant located at approximately milepost 0.44 on State Route
170 in Columbiana County. Defendant suggested “the cover existed in that location for
only a relatively short amount of time before plaintiff’s incident.” Defendant asserted
plaintiff has failed to produce any evidence to establish the length of time the loose
manhole cover was on the roadway prior to his December 6, 2008 property damage
event.
{¶ 3} Defendant contended plaintiff failed to offer any evidence “which affords a
reasonable basis for the conclusion that it is more likely than not that the conduct of
ODOT was the cause of his incident.” Defendant explained DOT crews were working
on State Route 170 in the vicinity of milepost 0.44 on December 2, 2008 and no loose
manhole cover was detected. Defendant acknowledged DOT maintenance crews were
performing snow plowing activities on State Route 170 on the day of plaintiff’s incident,
December 6, 2008. Defendant seemingly agreed that if this court finds DOT snow
plowing uprooted the manhole cover on the roadway and proximately caused plaintiff’s
property damage, DOT should be immune from liability. Defendant further argued that
snow plowing that results in hazardous conditions such as loose manhole covers being
deposited on the roadway “was necessary and reasonable for the safety of the traveling
public and done in a manner consistent with normal standards.” Defendant stated R.C.
5501.411 grants DOT “the right to remove ice and snow from state highways and the
authority to do whatever is necessary to conduct such removal activities.” Defendant
related, “assuming a snowplow of Defendant did cause a manhole cover to become
dislodged, Defendant contends that it is given statutory authority to do whatever is
reasonable and necessary to remove snow.”
Contrary to defendant’s argument
concerning “whatever is reasonable and necessary,” the court finds it neither
reasonable nor necessary to create a dangerous roadway hazard while in the course of
performing snow removal activities.
Defendant contended plaintiff failed to offer
sufficient proof to show his property damage was proximately caused by any negligent
conduct on the part of DOT in performing snow removal operations on State Route 170
on December 6, 2008.
{¶ 4} Plaintiff filed a response admitting he has no way of providing proof of how
long the manhole cover condition existed prior to his property damage occurrence.
Plaintiff expressed the belief the manhole cover was loose for only a brief time period.
Plaintiff submitted photographs depicting the manhole cover after it had been
1
R.C. 5501.41 covering DOT’s discretionary authority to remove snow and ice states:
“The director of transportation may remove snow and ice from state highways, purchase the
necessary equipment including snow fences, employ the necessary labor, and make all contracts
necessary to enable such removal. The director may remove snow and ice from the state highways
within municipal corporations, but before doing so he must obtain the consent of the legislative authority
of such municipal corporation. The board of county commissioners of county highways, and the board of
township trustees on township road, shall have the same authority to purchase equipment for the removal
repositioned in the roadway. In referencing the photographs plaintiff noted, “[a]s shown
in the pictures, there still appears to be (an) edge that the (DOT) plow could have easily
caught.”
From a review of the photographs, the trier of fact agrees with plaintiff’s
assessment.
{¶ 5} Plaintiff also submitted a statement signed by William A. Simms and
Phoebe A. Simms regarding their observations about the manhole cover on December
6, 2008. The statement was apparently drafted by William A. Simms and is included in
its entirety. Simms wrote: “On Dec. 6, 2008 my wife and I William A. Simms witnessed
a manhole cover on St. Rte. 170 in the middle of the road near Wendy’s. A state truck
was sitting in front of Big Lots, off on the (berm). St. Clair Twp. police jeep was in the
middle lane of traffic near the cover. The cover come from in front of Burger King, there
was a 3rd (vehicle) near the hole. The state truck did have a plow on. The manhole
cover has been black topped around since then and leveled with the rest of the
pavement.”
{¶ 6} 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-Ohio-2573, 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. 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.
{¶ 7} Defendant has the duty to maintain its highway in a reasonably safe
condition for the motoring public. Knickel v. Ohio Department of Transportation (1976),
of and to remove snow and ice as the director has on the state highway system.”
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. Additionally, defendant has a duty to exercise
reasonable care for the motoring public when conducting snow removal operations.
Andrews v. Ohio Department of Transportation (1998), 97-07277-AD.
{¶ 8} Ordinarily in a claim involving roadway defects, plaintiff must prove either:
1) defendant had actual or constructive notice of the defective 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.
{¶ 9} 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 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.
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. However, proof of notice of a dangerous condition is
not necessary when defendant’s own agents actively cause such condition. 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. In the instant
claim plaintiff has offered sufficient proof to establish the damage to his vehicle was
proximately caused by the acts of defendant’s personnel in conducting snow removal
operations. See McFadden v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-02881-AD,
2004-Ohio-3756; also Ruminski v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-05213-AD,
2005-Ohio-4223.
{¶ 10} “If any injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of 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 N.E. 327.
{¶ 11} The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to
believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. In the instant action, the trier of fact
finds the statements offered by plaintiff concerning the origin of the damage-causing
manhole to be persuasive. The trier of fact finds plaintiff’s car was damaged by a
manhole that was swept about by a DOT truck. Sufficient evidence has been presented
to establish defendant breached its duty of care to protect motorists from hazards
arising out of DOT maintenance activities. Plaintiff has proven his property damage
was caused by the acts of DOT personnel. See Vitek v. Ohio Dept. of Transp., Ct. of
Cl. No. 2004-09258-AD, jud, 2005-Ohio-1071; Zhang v. Ohio Dept. of Transp., Ct. of Cl.
No. 2008-07811-AD, 2008-Ohio-7077; Barnett v. Ohio Dept. of Transp. (2009), 200808809-AD.
Consequently, defendant is liable to plaintiff for the damages claimed,
$736.75, plus the $25.00 filing fee which may be reimbursed as compensable costs
pursuant to R.C. 2335.19.
See Bailey v. Ohio Department of Rehabilitation and
Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.
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
KEVIN L. PETERS
Plaintiff
v.
DEPARTMENT OF TRANSPORTATION
Defendant
Case No. 2008-11630-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 plaintiff in the amount of $761.75, which includes the filing fee. Court costs are
assessed against defendant.
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
Kevin L. Peters
46215 Wyoming Avenue
East Liverpool, Ohio 43920
RDK/laa
3/13
Filed 3/26/09
Sent to S.C. reporter 6/19/09
Jolene M. Molitoris, Director
Department of Transportation
1980 West Broad Street
Columbus, Ohio 43223
