Pollitt v. Ohio Dept. of Transp.

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[Cite as Pollitt v. Ohio Dept. of Transp., 2006-Ohio-7236.] IN THE COURT OF CLAIMS OF OHIO SARA POLLITT : Plaintiff : v. : CASE NO. 2005-11361-AD OHIO DEPARTMENT OF TRANSPORTATION : MEMORANDUM DECISION : Defendant : : : : : : : : : : : : : : : : : {¶ 1} On October 4, 2005, at approximately 9:15 a.m., plaintiff, Sara Pollitt, suffered property damage to her 1993 Toyota Corrola, while traveling milepost .5 in Cincinnati. north on Interstate 75 near Specifically, plaintiff asserted her automobile was struck by debris which had fallen from the 5th St. overpass spanning Interstate 75. Plaintiff explained she was driving behind a semi-truck on Interstate 75 and her car was struck by falling debris as she traveled under the 5th Street overpass. {¶ 2} The headlamp debris. of hood, roof, plaintiff s Plaintiff trunk, vehicle filed this fender, were bumper damaged complaint by seeking cover, and the falling to recover $250.00, her insurance coverage deductible for automotive repair resulting from contended she cause negligence of the October incurred on these the 4, 2005, repair part of incident. expenses as defendant, Plaintiff a proximate Department of Transportation ( DOT ), in maintaining the 5th Street overpass spanning Interstate 75. {¶ 3} Defendant The filing fee was paid. denied any liability in this matter. Defendant asserted no DOT personnel were aware of any problems with the overpass spanning Intestate 75. Defendant contended plaintiff failed to produce sufficient evidence to establish her car was damaged by structural debris falling from the roadway overpass. {¶ 4} Defendant regarding denied problems with receiving any structural calls integrity or of prior to plaintiff s October 4, 2005, incident. complaints the overpass Furthermore, defendant suggested plaintiff s property damage was caused by debris that was kicked up from a vehicle traveling across the overpass, explained and a not post from the incident overpass inspection structure. was Defendant conducted of the overpass and the DOT inspector reported no signs of falling concrete or damage insisted plaintiff to the failed overpass. to prove Therefore, her property defendant damage was caused by any act or omission attributable to DOT. {¶ 5} On April 10, 2006, this court issued an entry granting plaintiff an extension of time defendant s investigation report. to submit a response to However, plaintiff has failed to submit a response. {¶ 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. DOT has the duty to maintain the system of highways free from unreasonable care. 42. risk of harm by exercising ordinary reasonable White v. Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, However, highways. DOT is not an insurer of the safety of its Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723. {¶ 7} For plaintiff to prevail on a claim of negligence, she must prove, by a preponderance of the evidence, that defendant owed her a duty, that it breached that duty, and that the breach proximately caused her injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St. 3d 79, 81, 2003-Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio Misc. 3d 75, 77. Plaintiff has the burden of proving, by a preponderance of the evidence, that she suffered a loss and that proximately caused by defendant s negligence. State University (1977), 76-0368-AD. this loss was Barnum v. Ohio However, [i]t is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a 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 failed to sustain such burden. Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio St. 198, approved and followed. {¶ 8} This court has previously held DOT liable for property damage resulting from falling debris. Transportation (1989), 89-05775-AD. Elsey v. Szymanski (1984), 14 Ohio St. 3d 51. has connected to failed any act to show the or omission of This court, as the trier of fact, determines questions of proximate causation. plaintiff Dept. Shinaver v. In the instant claim, damage-causing on the part of object was defendant, defendant was negligent in maintaining the area, or any other negligence on the part of defendant. Brzuszkiewicz v. Dept. of Transportation Taylor (1998), 97-12106-AD; 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. claim is denied. Consequently, plaintiff s IN THE COURT OF CLAIMS OF OHIO SARA POLLITT : Plaintiff : v. : CASE NO. 2005-11361-AD OHIO DEPARTMENT OF TRANSPORTATION : ENTRY OF ADMINISTRATIVE DETERMINATION : Defendant : : : : : : : : : : : : : : : : : Having considered all the evidence in the claim file and, for the reasons concurrently defendant. set forth herewith, in the judgment is memorandum rendered decision in filed favor Court costs are assessed against plaintiff. of 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: Sara Pollitt 174 Silverspring Drive Cincinnati, Ohio 45238 Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 RDK/laa Plaintiff, Pro se For Defendant 7/7 Filed 8/4/06 Sent to S.C. reporter 4/5/07

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