[Cite as Horton v. Dept. of Transp., 2010-Ohio-6325.]

                                       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




CALVIN HORTON

       Plaintiff

       v.

DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2010-03479-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Calvin Horton, filed this action against defendant, Department of
Transportation (ODOT), contending his vehicle was damaged as a proximate cause of
negligence on the part of ODOT personnel in maintaining a hazardous condition on
State Route 301 in Medina County. Specifically, plaintiff related a tire and rim on his
semi-truck trailer were damaged when it “hit a piece of concrete (that) broke out of (the)
road.” Plaintiff submitted photographs depicting the particular damage-causing roadway
defect which appears to be a portion of a cracked concrete slab that had been set in the
center of the northbound lanes of State Route 301. Plaintiff recalled the described
incident occurred on February 3, 2010 at approximately 8:30 p.m. In his complaint,
plaintiff seeks damage recovery in the amount of $503.82, the total cost of replacement
parts. The $25.00 filing fee was paid and plaintiff requested reimbursement of that cost
along with his damage claim.
        {¶ 2} Defendant conducted an investigation and determined that the damage-
causing incident occurred at milepost 2.5 on State Route 301 in Medina County.
Defendant related ODOT “did not receive notice of the subject condition prior to the time
in question.” Defendant stated, “ODOT believes that the debris existed in that location
for only a relatively short amount of time before plaintiff’s incident.”         Defendant
specifically denied that ODOT personnel had any knowledge of a debris condition at
milepost 2.5 on State Route 301 prior to the described February 3, 2010 property
damage occurrence.      Defendant asserted plaintiff did not produce any evidence to
establish the length of time the debris condition was on the roadway prior to 8:30 p.m.
on February 3, 2010. Defendant also asserted that plaintiff did not offer any evidence to
show the damage-causing debris condition was attributable to any conduct on the part
of ODOT. Defendant explained ODOT personnel conducted “snow plowing activities
throughout the day on February 3, 2010, in Medina County but they were treating the
roadways with salt” and snowplow blades were not used to remove snow from the
roadway due to a light snowfall. Defendant further explained an ODOT employee was
sent to the roadway area on State Route 301 where he discovered “cracked/broken
concrete” on the roadway and a “chunk of concrete removed and laying on the other
side of the ditch line.” Defendant contended plaintiff failed to offer evidence to establish
the roadway was negligently maintained.
       {¶ 3} 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 79, 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 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.          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.
       {¶ 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. Additionally, defendant has the duty to exercise
reasonable care for the motoring public when conducting snow removal operations.
Andrews v. Ohio Department of Transportation (1998), 97-07277-AD.
       {¶ 5} 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. There is no proof defendant had actual notice or
constructive notice of any debris condition despite the fact ODOT crews were in the
area on February 3, 2010.
       {¶ 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’s own agents actively cause such condition. 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.                Evidence is
inconclusive whether or not the damage-causing debris condition was originally created
by defendant’s personnel.
       {¶ 7} “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 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.
       {¶ 8} Plaintiff has not shown, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to him or that his property damage was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing debris condition was connected to any conduct under the control of defendant,
or that there was any negligence on the part of defendant. Taylor v. Transportation
Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-
10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD.
       {¶ 9} Finally, 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. Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD.
Therefore, defendant is not liable for any damage plaintiff may have suffered from the
debris his vehicle struck.




                               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




CALVIN HORTON

      Plaintiff

      v.

DEPT. OF TRANSPORTATION

      Defendant

       Case No. 2010-03479-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:

Calvin Horton                                    Jolene M. Molitoris, Director
41450 Smith Road                                 Department of Transportation
Wellington, Ohio 44090                           1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
8/4
Filed 8/31/10
Sent to S.C. reporter 12/17/10
