[Cite as Williams v. Ohio Dept. of Transp., 2009-Ohio-5605.]
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
ROBERT W. WILLIAMS
Plaintiff
v.
OHIO DEPARTMENT OF TRANSPORTATION
Defendant
Case No. 2009-01999-AD
Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION
FINDINGS OF FACT
{¶ 1} 1)
On January 20, 2009 at approximately 11:00 p.m., plaintiff, Robert W.
Williams, was traveling west on State Route 39 “outside of Wellsville, Ohio,” when two
tires on his truck were punctured by an uprooted centerline road reflector protruding
upright from the traveled portion of the roadway.
{¶ 2} 2)
Plaintiff asserted the damage to his car was 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 damages in the
amount of $280.34, for automotive repair. The filing fee was paid.
{¶ 3} 3)
Defendant denied liability based on the contention that no DOT
personnel had any knowledge of a loose reflector on the roadway prior to plaintiff’s
January 20, 2009 property damage occurrence. Defendant related that DOT records
indicate that no previous calls or complaints were received from any entity regarding the
particular dislodged reflector which DOT located at milepost 10.70 on State Route 39 in
Columbiana County. Defendant contended plaintiff failed to produce any evidence to
show how long the dislodged reflector existed on the roadway prior to 11:00 p.m. on
January 20, 2009.
Defendant suggested that the loose reflector condition likely,
“existed in that location for only a relatively short amount of time before plaintiff’s
incident.”
{¶ 4} 4)
Defendant asserted that plaintiff did not provide evidence to establish
that his property damage was caused by negligent maintenance on the part of DOT.
Defendant explained that DOT regularly maintains the roadways in the vicinity of
plaintiff’s damage event. Defendant noted that if any DOT employees had discovered a
dislodged road reflector, “they would have immediately repaired it.”
{¶ 5} 5)
Plaintiff filed a response suggesting the road reflector his vehicle
struck was dislodged by a DOT snow plow in the course of engaging in snow removal
operations at some time prior to his property damage.
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
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.
{¶ 8} 3)
“[C]onstructive notice is that which the law regards as sufficient to
give notice and is regarded as a substitute for actual notice or knowledge.” In re Estate
of Fahle (1950), 90 Ohio App. 195, 197-197, 48 O.O. 231, 105 N.E. 2d 429. “A finding
of constructive notice is a determination the court must make on the facts of each case
not simply by applying a pre-set time standard for the discovery of certain road
hazards.” Bussard, at 4. “Obviously, the requisite length of time sufficient to constitute
constructive notice varies with each specific situation.” Danko v. Ohio Dept. of Transp.
(Feb. 4, 1993), Franklin App. 92AP-1183.
In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, that
sufficient time has elapsed after the dangerous condition appears, so that under the
circumstances defendant should have acquired knowledge of its existence. Guiher v.
Dept. of Transportation (1978), 78-0126-AD; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
{¶ 9} 4)
Plaintiff has not produced any evidence to indicate the length of time
the particular loosened road reflector was present on the roadway prior to the incident
forming the basis of this claim. Plaintiff has not shown defendant had actual notice of
the uprooted reflector.
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 loosened road reflector 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 dislodged reflector. 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 or conditions. 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
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 it 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 the 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.
Defendant
professed liability cannot be established when requisite notice of the damage-causing
conditions cannot be proven. Generally, defendant is only liable for roadway conditions
of which it has notice, but fails to correct. Bussard, 31 Ohio Misc. 2d 1, 31 OBR 64, 507
N.E. 2d 1179.
However, proof 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. Plaintiff has failed to produce sufficient
evidence to prove that his property damage was caused by DOT engaging in snow
removal operations at sometime prior to January 20, 2009.
{¶ 11} 6)
Plaintiff has not proven, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to him or that his injury was proximately
caused by defendant’s negligence. Plaintiff failed to show that the damage-causing
condition was created by conduct under the control of defendant, or negligent
maintenance on the part of defendant. Taylor v. Transportation Dept. (1998), 97-10898AD; Weininger v. Department of Transportation (1999), 99-10909-AD; Witherell v. Ohio
Dept. of Transportation (2000), 2000-04758-AD. Plaintiff has failed to provide sufficient
evidence to prove that defendant maintained a hazardous condition on the roadway
which was the substantial or sole cause of plaintiff’s property damage. Plaintiff has
failed to prove, by a preponderance of the evidence, that defendant’s roadway
maintenance activity created a nuisance.
Plaintiff has not submitted conclusive
evidence to prove a negligent act or omission on the part of defendant caused the
damage to his vehicle. Hall v. Ohio Department of Transportation (2000), 99-12863-AD.
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
ROBERT W. WILLIAMS
Plaintiff
v.
OHIO DEPARTMENT OF TRANSPORTATION
Defendant
Case No. 2009-01999-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:
Robert W. Williams
P.O. Box 534
West Point, Ohio 44492
RDK/laa
6/2
Filed 6/23/09
Sent to S.C. reporter 10/22/09
Jolene M. Molitoris, Director
Department of Transportation
1980 West Broad Street
Columbus, Ohio 43223
