[Cite as Sampson v. Ohio Dept. of Transp., 2011-Ohio-4585.]



                                      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




ARLENE SAMPSON

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2011-02018-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶1} Plaintiff, Arlene Sampson, filed this action against defendant, Ohio
Department of Transportation (ODOT), contending her 2009 Honda Accord was
damaged as a proximate result of negligence on the part of ODOT in maintaining a
hazardous condition on Interstate 71 in Cuyahoga County.           Plaintiff described her
damage incident occurred in the following manner, “[a]s I traveled behind a black Infinity
vehicle, I noticed that it started to swerve within the lane and suddenly a big torn-out
truck tire went from (underneath) the Infinity to under my brand new car.” Plaintiff
asserted the left front molding under the door and bumper was bent, leaving a gap
between the spoiler and the door. Plaintiff recalled her damage event occurred on
September 7, 2010, at approximately 3:45 p.m. In her complaint, plaintiff requested
damages in the amount of $916.28, the total cost of replacement parts and related
expense associated with having her car repaired. Payment of the $25.00 filing fee was
waived.
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Case No. 2006-03532-AD                    -2-                MEMORANDUM DECISION



       {¶2} Defendant denied liability based on the contention that no ODOT personnel
had any knowledge of the damage-causing debris condition prior to plaintiff’s incident.
Defendant located the debris at milepost 232.0 to 231.26 on I-71 in Cuyahoga County
and advised ODOT did not receive any calls or complaints for debris at that location
despite the fact the particular “section of roadway has an average daily traffic count
between 86,420 and 93,170 vehicles.” Defendant suggested, “that the debris existed in
that location for only a relatively short amount of time before plaintiff’s incident.”
Defendant asserted plaintiff failed to establish the length of time the debris existed on
the roadway prior to her property damage event.
       {¶3} Defendant insisted no ODOT personnel had any knowledge of a truck tire at
that location on I-71 prior to the described incident forming the basis of this claim.
Defendant contended plaintiff failed to establish the damage-causing debris condition
was attributable to any conduct on the part of ODOT. Defendant related the ODOT
“Cuyahoga County Manager conducts roadway inspections on all state roadways within
the county on a routine basis, at least one to two times a month.” Apparently, no debris
was discovered in the vicinity of plaintiff’s incident on I-71 the last time that section of
roadway was inspected before September 7, 2010. The claim file is devoid of any
Case No. 2006-03532-AD                           -3-                   MEMORANDUM DECISION




Case No. 2006-03532-AD                           -3-                   MEMORANDUM DECISION



inspection record.
        {¶4} Defendant did submit a six-month maintenance history of the specific
roadway area in question which recorded ten litter patrol operations were performed in
the relevant area of I-71 during the time frame covered. According to the submitted
maintenance history, the last time ODOT personnel were working in the area was on
September 1, 2010, when litter was removed from the area. Defendant stated “if ODOT
personnel had found any debris it would have been picked up.” Defendant argued
plaintiff failed to produce evidence to show her property damage was proximately
caused by negligent maintenance on the part of ODOT.1
        {¶5} Plaintiff filed a response noting that she is not at fault for this accident and
that defendant should be liable for her damages.




        1
           Although defendant also denied liability based on an assumption that the truck tire was
displaced by another vehicle, plaintiff explains in her complaint and in her response that the debris merely
bounced on the roadway as the cars passed over it and that the debris caused damage to the underside
of her car as she traveled over it.
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Case No. 2006-03532-AD                  -4-              MEMORANDUM DECISION



      {¶6} 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 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, 30 O.O. 415, 61 N.E. 2d 198, approved and followed.
      {¶7} 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),
Case No. 2006-03532-AD                   -5-               MEMORANDUM DECISION




Case No. 2006-03532-AD                   -5-               MEMORANDUM DECISION



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.
      {¶8} 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.
      {¶9} Defendant professed liability cannot be established when requisite notice of
the damage-causing conditions cannot be proven.         However, proof of notice of a
dangerous condition is not necessary when defendant’s own agents 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 her property damage
was caused by a defective condition created by ODOT or that defendant knew about
the particular debris condition prior to 3:45 p.m. on September 7, 2010.
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Case No. 2006-03532-AD                  -6-               MEMORANDUM DECISION



      {¶10} Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions including debris, 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 that ODOT had
actual notice of the damage-causing condition. Therefore, in order to recover plaintiff
must offer proof of defendant’s constructive notice of the condition or evidence to
establish negligent maintenance.
      {¶11} “[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 fact 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
Case No. 2006-03532-AD                   -7-               MEMORANDUM DECISION




Case No. 2006-03532-AD                   -7-               MEMORANDUM DECISION



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.
      {¶12} Plaintiff has not produced any evidence to indicate the length of time that
the truck tire was present on the roadway prior to the incident forming the basis of this
claim. Plaintiff has not shown that defendant had actual notice of the condition. Also,
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 debris 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 debris
on the roadway.
      {¶13} 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 or conditions. Herlihy v. Ohio Department of Transportation (1999), 99-07011-
AD.
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Case No. 2006-03532-AD                  -8-              MEMORANDUM DECISION



      {¶14} 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 that 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 proximately caused
the damage. Herman v. Ohio Dept. of Transp. (2006), 2006-05730-AD; Husak v. Ohio
Dept. of Transp., Ct. of Cl. No. 2008-03963-AD, 2008-Ohio-5179.
Case No. 2006-03532-AD            -9-   MEMORANDUM DECISION




Case No. 2006-03532-AD            -9-   MEMORANDUM DECISION




                             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




ARLENE SAMPSON

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

      Case No. 2011-02018-AD

Deputy Clerk Daniel R. Borchert
Case No. 2006-03532-AD                    - 10 -             MEMORANDUM DECISION




Case No. 2006-03532-AD                    - 10 -             MEMORANDUM DECISION




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:

Arlene Sampson                                     Jerry Wray, Director
3880 Mayfield Road #204                            Department of Transportation
Cleveland Hts., Ohio 44121                         1980 West Broad Street
                                                   Columbus, Ohio 43223
SJM/laa
5/10
Filed 6/7/11
Case No. 2006-03532-AD          - 11 -   MEMORANDUM DECISION




Case No. 2006-03532-AD          - 11 -   MEMORANDUM DECISION



Sent to S.C. reporter 9/12/11
