[Cite as Salcius v. Ohio Dept. of Transp., 2009-Ohio-7166.]

                                       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




DEANNA M. SALCIUS

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2009-06958-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Deanna M. Salcius, related she was traveling west on US Route
20 in Painesville Township in Lake County at 2495 North Ridge Road, when her 2008
Ford Taurus SEL, “swerved a bit right brushing against a small section of curb and
brushing the right front tire” of the vehicle. Plaintiff pointed out soon “realized I had a
flat tire” and when she pulled over she discovered the 2008 Ford Taurus SEL had two
flat tires. Plaintiff explained she went back to 2495 North Ridge Road to look at the curb
area her car struck and observed “a large pothole along with a sewer drain and the
curb.” Plaintiff submitted photographs of the roadway area at 2495 North Ridge Road
that depict an asphalt topped sewer drain located entirely outside of the regularly
traveled portion of the roadway.             Plaintiff recalled her damage incident occurred at
approximately 2:24 p.m. on July 7, 2009.                      Plaintiff implied the damage to her
automobile, which consisted of tire and wheel damage, was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in
maintaining a defective condition on US Route 20. Plaintiff filed this complaint seeking
to recover $810.62, the total cost of replacement parts and related repair expenses.
Plaintiff acknowledged she maintains insurance coverage for automotive repair costs
with a $500.00 deductible and has received reimbursement in the amount of $310.62
from her insurance carrier.           Consequently, pursuant to R.C. 2743.02(D)1 plaintiff’s
damage claim is limited to $500.00. The filing fee was paid.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of “a deficient sewer grate on US 20 prior to plaintiff’s
incident.”    Defendant asserted plaintiff failed to offer any evidence to establish her
property damage was proximately caused by any conduct attributable to ODOT.
Additionally, defendant pointed out the sewer grate plaintiff’s vehicle struck is clearly
outside the portion of the roadway intended for travel and consequently, ODOT may not
be held liable for damage caused by conditions located off the roadway. Defendant
submitted photographs depicting the sewer grate condition that clearly shows the sewer
grate is located outside the traveled portion of the roadway. The photographs also
depict a small area of roadway pavement deterioration along the white painted road
edgeline. This small deterioration does not appear to have been causally related to any
of the property damage claimed. Defendant argued plaintiff failed to prove her property
damage was caused by ODOT breaching any duty of care owed to the traveling public
in regard to roadway maintenance.
        {¶ 3} 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, 788 N.E. 2d 1088, ¶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 only


        1
            R.C. 2743.02(D) states:
          “(D) Recoveries against the state shall be reduced by the aggregate of insurance proceeds,
disability award, or other collateral recovery received by the claimant. This division does not appy to civil
actions in the court of claims against a state university or college under the circumstances described in
section 3345.40 of the Revised Code. The collateral benefits provisions of division (B)(2) of that section
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.
       {¶ 4} 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.
       {¶ 5} 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.
       {¶ 6} Ordinarily in a claim involving roadway defects, plaintiff must prove either:
1) defendant had actual or constructive notice of the defective 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. However, the particular standard of proof applies
in situations where a motorist suffers damage from a defective condition located on the
traveled portion of the roadway.     Evidence in the instant claim establishes that the
sewer grate plaintiff’s car struck was located entirely on the roadway berm.
       {¶ 7} This court has previously held that the Department of Transportation is not
to be held liable for damages sustained by individuals who used the berm or shoulder of
a highway for travel without adequate reasons.            Colagrossi v. Department of
Transportation (1983), 82-06474-AD. Generally, a plaintiff is barred from recovery for
property damage caused by a defect or any condition located off the traveled portion of
the roadway.
       {¶ 8} The shoulder of a highway is designed to serve a purpose which may

apply under those circumstances.”
include travel under emergency circumstances. It is for the trier of fact to determine
whether driving on the shoulder is a foreseeable and reasonable use of the shoulder of
the highway. Dickerhoof v. City of Canton (1983), 6 Ohio St. 3d 128, 6 OBR 186, 451
N.E. 2d 1193. If a plaintiff sustains damage because of a defect located off the marked,
regularly traveled portion of a roadway, a necessity for leaving the roadway must be
shown.   Lawson v. Department of Transportation (1977), 75-0612-AD.          Inadvertent
travel based on inattention is not an adequate reason or necessity for straying from the
regularly traveled portion of the roadway. Smith v. Ohio Department of Transportation
(2000), 2000-05151-AD.
      {¶ 9} Defendant may 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.
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.
      {¶ 10} “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, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber
Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171
N.E. 327. Evidence available tends to point out the roadway was maintained properly
under ODOT specifications.      Plaintiff failed to prove her damage was proximately
caused by any negligent act or omission on the part of ODOT or its agents. See Wachs
v. Dept. of Transp., Dist. 12, Ct. of Cl. No. 2005-09481-AD, 2006-Ohio-7162; Vanderson
v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-09961-AD, 2006-Ohio-7163; Shiffler v.
Ohio Dept. of Transp., Ct. of Cl. No. 2007-07183-AD, 2008-Ohio-1600. In fact, the sole
cause of plaintiff’s damage was her own negligent driving. See Wieleba-Lehotzky v.
Ohio Dept. of Transp., Dist. 7, Ct. of Cl. No. 2007-07183-AD, 2004-Ohio-4129. Plaintiff
has not proven defendant maintained a hidden roadway defect. Clevenger v. Ohio
Dept. of Transportation (1999), 99-12049; Sweney v. Ohio Dept. of Transp., Dist. 8
(2009), 2009-03649-AD.
                               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




DEANNA M. SALCIUS

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2009-06958-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:
Deanna M. Salcius              Jolene M. Molitoris, Director
1712 Heather Road              Department of Transportation
Madison, Ohio 440575           1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
10/12
Filed 11/17/09
Sent to S.C. reporter 3/5/10
