Wallace v. Ohio Dept. of Transp.

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[Cite as Wallace v. Ohio Dept. of Transp., 2006-Ohio-7281.] 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 STANLEY A. WALLACE Plaintiff Case No. 2006-02994-AD Daniel R. Borchert Deputy Clerk v. MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION Defendant FINDINGS OF FACT {¶ 1} 1) On January 25, 2006, at approximately 9:45 a.m., plaintiff, Stanley A. Wallace, was traveling east on US Route 250 in Tuscarawas County, when a preceding semi-truck struck debris laying on the roadway causing the debris to fly into the path of plaintiff s 2000 Dodge Dakota truck. The flying debris, which appeared to be concrete paving material, struck the front end of plaintiff s vehicle causing damage to the truck s grill and condenser core. Plaintiff submitted photographic evidence depicting his property damage and the damage-causing piece of concrete. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $500.00, his insurance coverage deductible for vehicle repair. Plaintiff implied the property damage to his truck was proximately caused by negligence on the part of defendant, Department of Transportation ( DOT ), in maintaining U.S. Route 250. The filing fee was paid. {¶ 3} 3) Defendant denied any liability based on the contention no DOT personnel had knowledge of any roadway defect or debris condition on US Route 250 at milepost 18.0 in Tuscarawas County prior to plaintiff s damage occurrence. Defendant related no complaints were received regarding the roadway surface condition or debris on US Route 250 before January 25, 2006. Defendant suggested the damage-causing debris condition probably existed for only a short amount of time before plaintiff s incident. {¶ 4} 4) Plaintiff did not submit any evidence to establish the length of time the condition existed prior to the January 25, 2006, property damage event. {¶ 5} 5) Furthermore, defendant explained DOT employees conduct roadway inspections on a routine basis and had any of these employees detected a roadway defect that defect would have promptly been repaired or rectified. Defendant contended, plaintiff did not produce sufficient evidence to prove DOT breached any duty of care owed to the traveling public in respect to roadway maintenance. 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. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723. {¶ 7} 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. Case No. 2006-02994-AD {¶ 8} -3- ENTRY Plaintiff has not produced any evidence to indicate the length of time the concrete debris 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 concrete debris. 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 defective condition appeared on the roadway. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. There is no indication defendant had constructive notice of the condition of the concrete 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. {¶ 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, 81, 2003-Ohio-2573, ¶8 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 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, approved and followed. Case No. 2006-02994-AD {¶ 10} -4- ENTRY 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. 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. {¶ 11} 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 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, at 160 quoting Neff Lumber Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302-309. {¶ 12} 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. 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. Taylor v. Transportation Dept. (1998), 97-10898-AD; Weininger v. Department of Case No. 2006-02994-AD -5- ENTRY Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. Consequently, plaintiff s claim is denied. 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 STANLEY A. WALLACE Plaintiff v. Case No. 2006-02994-AD Daniel R. Borchert Deputy Clerk ENTRY OF ADMINISTRATIVE DETERMINATION OHIO DEPARTMENT OF TRANSPORTATION 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. 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: Stanley A. Wallace 10988 Welton Road N.E. Bolivar, Ohio 44612 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant RDK/laa 8/22 Filed 9/21/06 Sent to S.C. reporter 6/5/07

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