[Cite as Wess v. Ohio Dept. of Transp., 2011-Ohio-3780.]



                                      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




ROBERT F. WESS

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 5

       Defendant


        Case No. 2011-01127-AD


Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Robert F. Wess, filed this action against defendant, Department of
Transportation (ODOT), contending his 2006 Chevrolet C7500 truck was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a road reflector on
State Route 555 in Muskingum County. In his complaint, plaintiff provided a narrative
description of his damage incident noting he was traveling on State Route 555 in
Zanesville on December 8, 2010 when he “felt a thump in the rear of the truck” and
when he subsequently stopped to examine his vehicle he discovered the truck “had run
over a detached metal lane reflector that was in the driving lane close to the center of
the road.” Plaintiff explained the detached road reflector punctured one of his truck tires
creating “a 4"-5" hole.” Plaintiff submitted photographs depicting the damage-causing
road reflector, the highway surface where the reflector was anchored, and the damaged
truck tire. Plaintiff requested damages in the amount of $491.74, the total stated cost of
a replacement tire. The filing fee was paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel breached any duty owed to plaintiff in regard to roadway maintenance
of a pavement marker (reflector) on State Route 555 in Muskingum 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 the December 8, 2010
damage occurrence. Defendant explained State Route 555 was regularly maintained in
the vicinity of plaintiff’s damage incident with ODOT personnel conducting “eighteen
(18) maintenance operations in the area during the six-month period before” December
8, 2010.    Defendant further explained “[w]ithin these eighteen (18) maintenance
operations (records submitted), four (4) of them were for Litter Pickup and ODOT was
there on November 23, 2010.” Defendant related “ODOT 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.”        The submitted records reflect
ODOT personnel were last in the area prior to December 8, 2010 on November 29,
2010 when ditch work was conducted.
       {¶ 3} Plaintiff filed a response acknowledging that he has no evidence to
establish the length of time the detached reflector was on the roadway prior to his
incident. Plaintiff noted ODOT personnel did not install a new reflector at the location of
his incident on State Route 555, but only patched the pavement. Plaintiff provided a
photograph depicting the patched pavement area where the reflector had previously
been anchored. Plaintiff produced photographs (taken March 18, 2011) depicting a
roadway defect on Interstate 70 West at milepost 150.5.
       {¶ 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 7:30 p.m. on December 8, 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 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 debris condition. 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 debris condition 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 debris 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 State Route 555 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




ROBERT F. WESS

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 5

      Defendant

      Case No. 2011-01127-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:

Robert F. Wess                  Jerry Wray, Director
16246 Laurel Hill Road S.E.     Department of Transportation
Glenford, Ohio 43739            1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
3/30
Filed 4/20/11
Sent to S.C. reporter 7/29/11
