Filak v. Ohio Dept. of Transp.

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[Cite as Filak v. Ohio Dept. of Transp., 2006-Ohio-7262.] IN THE COURT OF CLAIMS OF OHIO JOSEPH J. FILAK III : Plaintiff : v. : CASE NO. 2006-03257-AD OHIO DEPARTMENT OF TRANSPORTATION : MEMORANDUM DECISION : Defendant : : : : : : : : : : : : : : : : : {¶ 1} Plaintiff, Joseph J. Filak III, related he was traveling east on Interstate 90, exiting the freeway at W 117th St. in Cleveland, roadway when causing his automobile substantial struck property debris damage laying to the in the vehicle. Plaintiff pointed out the debris condition was caused from a downed light pole that had apparently been knocked down by a preceding motorist. Plaintiff stated debris from the downed pole lanes covered ramp. any roadway spanning the entire roadway exit Plaintiff recalled he could not stop or swerve to avoid of the debris. According to plaintiff, this property damage incident occurred on January 24, 2006, at approximately 10:00 p.m. {¶ 2} Plaintiff filed this complaint seeking to recover $2,300.00, his cost of automotive repair associated with the January 24, 2006, incident. Plaintiff also seeks recovery of the he $25.00 filing fee which paid. Plaintiff implied he suffered these damages as a proximate cause of negligence on the part of defendant, Department of Transportation ( DOT ), in Case No. 2006-03257-AD -2- MEMORANDUM DECISION maintaining the roadway. {¶ 3} Defendant denied any liability in this matter. Defendant denied any DOT personnel had knowledge of a downed light pole prior to plaintiff s property damage occurrence. Defendant asserted Cleveland Police called DOT and reported a downed light pole on Interstate 90 at approximately milepost 10.62 in Cuyahoga County. Defendant related the information was received that someone had knocked down the light pole and left the scene. Defendant observed this notice of the down light pole was received at 10:02 p.m. on January 24, 2006. Defendant contended plaintiff failed to produce evidence establishing his property damage was connected to any negligent act or omission on the part of DOT personnel. {¶ 4} In plaintiff his response insisted his to defendant s property investigation damage was the report, result of negligence on the part of DOT in failing to remove various light fixture debris from the roadway. Plaintiff reiterated he could not see the debris in adequate time to avoid striking the light fixtures that remained on the roadway. Plaintiff questioned defendant s assertions regarding lack of notice about the downed light pole. {¶ 5} 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, highways. defendant is not an insurer of the safety of its See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Case No. 2006-03257-AD -2- MEMORANDUM DECISION Ohio App. 3d 723. {¶ 6} In order to prove a breach of duty to maintain the highways, plaintiff must prove, by a preponderance of the evidence, that defendant had actual or constructive notice of the precise accident. condition McClellan or defect v. ODOT alleged (1986), to 34 have Ohio caused App. 3d the 247. Defendant is only liable for roadway conditions of which it has notice, but fails to reasonably correct. Transp. (1986), 31 Ohio Misc. 2d 1. Bussard v. Dept. of 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 (1988), 61 Ohio Misc. 2d 262. v. Highway Department However, proof of notice of a dangerous condition is not necessary when defendant s own agents actively cause such condition. (1922), 106 Ohio St. 94, at See Bello v. City of Cleveland paragraph one of the syllabus; Sexton v. Ohio Department of Transportation (1996), 94-13861. {¶ 7} 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, 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 proximately caused by defendant s negligence. State University (1977), 76-0368-AD. this loss was Barnum v. Ohio However, [i]t is the duty Case No. 2006-03257-AD -2- MEMORANDUM DECISION 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. {¶ 8} 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 injury. of DOT was the proximate cause of plaintiff s This court, as trier of fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51. {¶ 9} 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 necessary proximate that the particular injury. result in an result of defendant the negligence. should have It is not anticipated the It is sufficient that his act is likely to injury to someone. Cascone v. Herb Kay Co. Case No. 2006-03257-AD -2- MEMORANDUM DECISION (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. {¶ 10} Plaintiff has failed to establish his damage was proximately caused by any negligent act or omission on the part of DOT. act of In fact, the sole cause of plaintiff s injury was the an unknown third Plaintiff has failed to evidence, that defendant party which prove, failed by to did a not involve preponderance discharge a duty DOT. of the owed to plaintiff, or that plaintiff s injury was proximately caused by defendant s negligence. Plaintiff failed to show the damage- causing object at the time of the damage incident 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 Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. Plaintiff has failed to provide sufficient evidence to prove 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 submitted activity conclusive created evidence a nuisance. to prove Plaintiff a negligent has not act or omission on the part of defendant caused the damage to his car. Hall v. Ohio Department of Transportation (2000), 99-12863-AD. Case No. 2006-03257-AD -2- MEMORANDUM DECISION IN THE COURT OF CLAIMS OF OHIO JOSEPH J. FILAK III : Plaintiff : v. : CASE NO. 2006-03257-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: Joseph J. Filak III 2210 W. 39th Street Lorain, Ohio 44053 Plaintiff, Pro se Gordon Proctor, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 For Defendant Case No. 2006-03257-AD RDK/laa 8/21 Filed 9/6/06 Sent to S.C. reporter 4/13/07 -2- MEMORANDUM DECISION

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