[Cite as Poindexter v. Ohio Dept. of Transp., 2011-Ohio-5723.]



                                       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




ANDREW POINDEXTER,                                               :   Case No. 2011-03090-AD

       Plaintiff,

       v.                                                        :   Acting Clerk Daniel R. Borchert


OHIO DEPARTMENT OF TRANSPORTATION,

       Defendant.                                                :   MEMORANDUM DECISION




        {¶ 1} Plaintiff, Andrew Poindexter, filed this action against                         defendant,
Department of Transportation (ODOT), contending his left rear tire was damaged as a
proximate result of negligence on the part of ODOT in maintaining a road reflector on
State Route 9 in Belmont County.                 In his complaint, plaintiff provided a narrative
description of his damage incident noting on February 24, 2011, at approximately 8:30
p.m., he was traveling on State Route 9 when “a road reflector pulled out of the ground *
* * and blew out my left rear tire.”              Plaintiff requested damages in the amount of
$254.29, the cost of a replacement tire. The $25.00 filing fee was paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any notice of a loose reflector on SR 9 prior to plaintiff’s incident.
Defendant located plaintiff’s incident at milepost 10.50 on SR 9 in Belmont County.
Defendant asserted plaintiff failed to provide any evidence to establish his property
damage was attributable to any conduct on the part of ODOT. Furthermore, defendant
asserted plaintiff failed to provide any evidence indicating the length of time the road
reflector was loose or detached from the roadway surface prior to his February 24, 2011
damage occurrence. Defendant explained SR 9 was regularly maintained in the vicinity
of plaintiff’s damage incident with ODOT personnel conducting ten (10) maintenance
operations on SR 9 at or near milepost 10.50 in the past six months. Defendant further
explained ODOT was performing maintenance of signs on February 23, 2011, the day
before plaintiff’s incident. Defendant related, “if there was a noticeable defect with any
raised or loosened reflector, it would have immediately been repaired.”
      {¶ 3} Plaintiff did not file a response.
      {¶ 4} 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,¶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 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 caused 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 his property damage was caused by a defective
condition created by ODOT or that defendant knew about the particular reflector
condition prior to February 24, 2011.
      {¶ 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 debris 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. Plaintiff has not provided any evidence to prove
ODOT had actual notice of the loose reflector. Therefore, in order to recover plaintiff
must offer proof of defendant’s constructive notice of the condition or 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, 47 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 road 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 condition appeared on the roadway. Spires v. Ohio Highway Department (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} 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 SR 9 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 his 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 his 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




ANDREW POINDEXTER,                                   :   Case No. 2011-03090-AD

      Plaintiff,

      v.                                             :   Acting Clerk Daniel R. Borchert


OHIO DEPARTMENT OF TRANSPORTATION,

      Defendant.                                     :


                   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
                                                Acting Clerk



Entry cc:

Andrew Poindexter                               Jerry Wray, Director
                                                Department of Transportation
                                                1980 West Broad Street
                                                Columbus, Ohio 43223
6/9
Filed 7/27/11
Sent to S.C. reporter 11/4/11
