[Cite as Ackerman v. Ohio Dept. of Transp., 2011-Ohio-4780.]



                                      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




JOSHUA T. ACKERMAN

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-01615-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶1}     Plaintiff,   Joshua     Ackerman,       filed    this   action   against      defendant,
Department of Transportation (ODOT), contending that his 2009 Ford Focus was
damaged as a proximate result of negligence on the part of ODOT in maintaining a road
reflector on “Milan Rd. 250" in Erie County.                   In his complaint, plaintiff provided a
narrative description of his damage incident noting that he was driving his car on
December 31, 2010, when “a life light came out of the road and damaged my car on the
passenger side door.” Plaintiff requested reimbursement “for my $25.00 filing fee and
the damages repaired on my Ford Focus.” The 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 US 250 prior to plaintiff’s
incident.      Defendant located plaintiff’s incident at milepost 3.50 on US 250 in Erie
County. Defendant asserted that plaintiff failed to provide any evidence to establish that
his property damage was attributable to any conduct on the part of ODOT.
Furthermore, defendant asserted that plaintiff failed to provide any evidence indicating
the length of time that the road reflector was loose or detached from the roadway
surface prior to the December 31, 2010 damage occurrence. Defendant explained that
US 250 was regularly maintained in the vicinity of plaintiff’s damage incident with ODOT
personnel conducting “fifteen (15) maintenance operations in the area during the six-
month period prior to the day of plaintiff’s incident.”   Defendant further explained that,
“[w]ithin these fifteen (15) maintenance operations (records submitted), four (4) of them
were for Litter Pickup and ODOT was last there on December 30, 2010.” Defendant
related that “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.”
       {¶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 December 31, 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,
      {¶8}    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 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.
      {¶9}    “[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.
       {¶10} 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.
       {¶11} 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 that ODOT personnel were routinely performing
work activities on the particular section of US 250 where plaintiff’s damage incident
occurred.     Plaintiff has failed to provide sufficient evidence to prove that 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




JOSHUA T. ACKERMAN

      Plaintiff

      v.
DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-01615-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:

Joshua T. Ackerman                                Jerry Wray, Director
113 Newberry Avenue                               Department of Transportation
Sandusky, Ohio 44870                              1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
4/26
Filed 6/15/11
Sent to S.C. reporter 9/21/11
