[Cite as Lechleiter v. Ohio Dept. of Transp., 2009-Ohio-7172.]

                                       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




MAUREEN A. LECHLEITER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2009-06923-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On July 27, 2009, a 2008 Honda Civic reportedly owned by Maureen A.
Lechleiter, was damaged while stopped in traffic on Interstate 71 South in Hamilton
County “between Pfeieffer Rd. and Ronald Reagan Hwy.” Plaintiff related the front
bumper of her car was damaged “when a Cincinnati Metro bus passed by on the inside
shoulder and threw back a hubcap that must have been lying on the shoulder” into the
path of the stopped 2008 Honda Civic. Plaintiff further related the flying debris struck
the left front bumper of the vehicle causing a large dent. Plaintiff submitted several
photographs depicting the damage to the automobile. Plaintiff asserted the damage to
her automobile was proximately caused by negligence on the part of defendant,
Department of Transportation (ODOT), in failing to maintain the roadway free of debris
conditions, such as the hubcap on the roadway shoulder area of Interstate 71. Plaintiff
stated “[o]n any given day, there is always plenty of debris on this section of freeway
(and) [t]his creates very dangerous conditions especially with the buses using the
shoulder.” Plaintiff filed this complaint seeking to recover damages in the amount of
$701.70, the total cost of automotive repair she incurred resulting from the described
incident. The $25.00 filing fee was paid and plaintiff requested reimbursement of that
cost along with her damage claim.
      {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the debris on Interstate 71 prior to plaintiff’s
property damage occurrence. Defendant denied receiving any prior calls or complaints
about the particular debris condition, which ODOT located between mileposts 15.80 and
14.13 on Interstate 71 in Hamilton County.      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 produce any evidence to establish her
property damage was attributable to any conduct on the part of ODOT personnel.
      {¶ 3} Defendant pointed out plaintiff acknowledged her property damage
occurred when a Cincinnati Metro bus ran over a hubcap on the shoulder of Interstate
71 and propelled the hubcap into the bumper of her car. Defendant contended ODOT is
generally not responsible for mishaps on the roadway caused by the conduct of a third
party; in this case the driver of a Cincinnati Metro bus.       Furthermore, defendant
asserted plaintiff failed to prove her damage was proximately caused by any negligence
on the part of ODOT in regard to roadway maintenance. Defendant explained ODOT
conducts roadway inspections on a routine basis and performs multiple maintenance
operations on Interstate 71 including litter pick up and curb, gutter, and roadway median
cleaning procedures. Defendant stated that “if ODOT personnel had found any debris it
would have been picked up.”
      {¶ 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 debris 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. There is no
evidence ODOT had actual notice of the debris condition. Therefore, plaintiff, in order
to prevail on a notice rationale, must present evidence of constructive notice of the
condition.   The trier of fact is precluded from making an inference of defendant’s
constructive notice, unless evidence is presented in respect to the time the debris
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458. However, proof of notice of a dangerous condition is not
necessary when defendant’s own agents actively cause 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. No evidence
has been presented to prove that defendant had constructive notice of the debris or that
ODOT personnel actively caused the condition.
      {¶ 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 injures.        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. 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} Evidence in the instant action tends to show plaintiff’s damage was
caused by an act of an unidentified third party, not ODOT.        Defendant has denied
liability based on the particular premise that it had no duty to control the conduct of a
third person except in cases where a special relationship exists between defendant and
either plaintiff or the person whose conducts 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 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.
       {¶ 8} “If an 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.
       {¶ 9} Plaintiff has failed to establish that her damage was proximately caused
by any negligent act or omission on the part of ODOT. In fact, it is apparent that the
cause of plaintiff’s injury was the act of a third party which did not involve ODOT.
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 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.


                               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




MAUREEN A. LECHLEITER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

       Case No. 2009-06923-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:

Maureen A. Lechleiter                             Jolene M. Molitoris, Director
4573 Hyacinth Drive                               Department of Transportation
Mason, Ohio 45040                                 1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
10/27
Filed 11/20/09
Sent to S.C. reporter 3/12/10
