Blubaugh v. Ohio Dept. of Transp.

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[Cite as Blubaugh v. Ohio Dept. of Transp., 2011-Ohio-3542.] 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 ABBY D. BLUBAUGH Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2010-10351-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION {¶ 1} Plaintiff, Abby D. Blubaugh, filed this action against defendant, Department of Transportation (ODOT), contending her 2007 Jeep Liberty was damaged as a proximate cause of negligence on the part of ODOT in maintaining a hazardous condition on Interstate 71 in Clinton County. Plaintiff recalled she was traveling south on Interstate 71 on July 16, 2010 at approximately 4:00 p.m. when a white Honda van traveling in front of her changed lanes and kicked up a square heavy object that then struck the left front door of her vehicle. Plaintiff reported she immediately stopped her car after the incident and called for assistance from the Ohio State Highway Patrol. Plaintiff noted the debris that damaged her vehicle was subsequently determined to be a dislodged road reflector. In her complaint, plaintiff requested damage recovery in the amount of $712.70, the cost of repairing the body damage to her jeep. {¶ 2} Defendant denied liability in this matter based on the contention that no ODOT personnel had any knowledge of a loose or defective reflector on the roadway prior to plaintiff s July 16, 2010 property damage occurrence. Defendant denied receiving any calls or complaints from any entity regarding a loose reflector which ODOT located at approximately state milepost 49.10 . . . on I-71 in Clinton County. Defendant advised, [t]his section of roadway has an average daily traffic count between 24,530 and 37,710, however, no record of any prior complaint regarding a dislodged reflector was received. Defendant contended plaintiff did not produce any evidence to establish the length of time the dislodged reflector was on the roadway at milepost 49.10 prior to 4:00 p.m. on July 16, 2010. Defendant suggested the uprooted road reflector condition existed in that location for only a relatively short amount of time before plaintiff s incident. {¶ 3} Defendant contended plaintiff did not offer any evidence to prove her property damage was proximately caused by any conduct attributable to ODOT personnel. Defendant explained ODOT conducted various maintenance operations on this particular section of Interstate 71 during the six-month period preceding July 16, 2010. Defendant noted that ODOT workers conducted eight (8) maintenance operations on I-71 for the past six months (and) [t]he last Litter Pickup was on June 21, 2010 for southbound I-71 at milepost 49.1. Apparently, no problems with dislodged reflectors were discovered during the time ODOT crews were working on June 21, 2010. Defendant stated that if ODOT work crews were doing activities such that if there was a noticeable defect with any raised or loosened pavement markers it would have immediately been repaired. Defendant argued it did not believe ODOT breached any duty of care owed to the motoring public in regard to roadway maintenance. {¶ 4} 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, 2003-Ohio-2573,¶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 she 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 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. {¶ 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, 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. {¶ 6} 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. However, proof of notice of a dangerous condition is not necessary when defendant actively causes 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 any evidence to prove that her property damage was caused by a defective condition created by ODOT or that defendant knew about the particular reflector condition prior to 4:00 p.m. on July 16, 2010. {¶ 7} Ordinarily, to recover in a suit involving injury proximately caused by roadway conditions including uprooted reflectors, plaintiff must prove that either: 1) defendant had actual or constructive notice of the uprooted reflector 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. Plaintiff has not provided any evidence to prove ODOT had actual notice of the uprooted reflector. Therefore, in order to recover plaintiff must offer proof of defendant s constructive notice of the condition as evidence to establish negligent maintenance. {¶ 8} [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, 197-198, 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} Plaintiff has not produced any evidence to indicate the length of time that the uprooted reflector was present on the roadway prior to the incident forming the basis of this claim. 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 that the uprooted reflector appeared on the roadway. Spires v. Ohio Department of Transportation (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no indication that defendant had constructive notice of the dislodged reflector. {¶ 10} Evidence in the instant action is conclusive that the damage-causing reflector was originally uprooted by an unidentified third party motorist and subsequently propelled into the path of plaintiff s car by another motorist not affiliated with ODOT. Defendant has denied liability based on the particular premise it had no duty to control the conduct of a third person except 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, 543 N.E. 2d 769. However, defendant may still bear liability if it can be established if some act or omission on the part of ODOT or its agents was the proximate cause of plaintiff s injury. Plaintiff has failed to prove, by preponderance of the evidence, that defendant failed to discharge a duty owed to her, or that her 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 or its agents. Hall v. Ohio Dept. of Transp. (2006), 2006-05730-AD. {¶ 11} Plaintiff has not produced any evidence to infer that 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. Defendant submitted evidence showing ODOT personnel were routinely performing work activities on the particular section of Interstate 71 where plaintiff s damage incident occurred. 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 her property damage. Plaintiff has failed to prove, by a preponderance of the evidence, that any ODOT roadway maintenance activity created a nuisance. Plaintiff has not submitted evidence to prove that a negligent act or omission on the part of defendant caused the damage to her vehicle. Prstojevic v. Dept. of Transp., Dist. 3, Ct. of Cl. No. 2009-08519-AD, 2010-Ohio-2186. 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 ABBY D. BLUBAUGH Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2010-10351-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: Abby D. Blubaugh 2607 SR 68 S. Xenia, Ohio 45385 RDK/laa 2/24 Filed 4/5/11 Sent to S.C. reporter 7/8/11 Jerry Wray, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223

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