[Cite as Green v. Ohio Dept. of Transp., 2011-Ohio-6995.]



                                      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




PHILLIP E. GREEN, JR.

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant


Case No. 2011-07630-AD

Deputy Clerk Daniel R. Borchert

                                     MEMORANDUM DECISION

        {¶ 1} Plaintiff, Phillip Green Jr., filed this action against defendant, Department
of Transportation (ODOT), contending his car was damaged when a piece of concrete
fell from an overhead ramp and hit the hood of his car. Plaintiff claims that ODOT was
negligent in its maintenance of the Harrison Road ramp off of Interstate 75, and that
ODOT's negligence proximately caused the damage to his vehicle. In his complaint,
plaintiff provided a description of his damage incident noting: “I got on the highway at
the Harrison St. on ramp going 75 north. As I passed under the off ramp of Harrison St.
75 north concrete from the ramp hit the hood of my car. Got out of the car looked for
object that hit my car and found a piece of concrete painted the same color of the
ramp.” Plaintiff did not include with the complaint any demonstrative evidence depicting
the damage-causing debris. Plaintiff recalled his described incident occurred on March
21, 2011 at approximately 3:00 a.m. Plaintiff requested damages in the amount of
$987.17, the stated cost of repairing his automobile. The filing fee was paid.
        {¶ 2} Defendant conducted an investigation and determined the described
damage incident occurred “when (plaintiff) passed under the overpass of the Western
Hills Viaduct” where the ramp loops back “at approximately milepost 2.52 on I-75 in
Hamilton County.” Defendant contended, “ODOT did not receive any reports of debris
prior to March 21, 2011.” Furthermore, defendant related, “the evidence suggests the
damage (to plaintiff’s car) was not caused by debris from the bridge.”          Defendant
asserted the overpass at milepost 2.52 “was inspected on November 19, 2010 and
reviewed on February 11, 2011, which is a month before Mr. Green’s complaint. The
inspection report does not indicate any falling debris from the structure.” Defendant
denied the falling piece of concrete that damaged plaintiff’s car was caused by any
negligent overpass maintenance.
       {¶ 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 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 only a basis for a choice
among different possibilities as to an 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.             The 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} Plaintiff filed a response asserting that defendant’s location of the incident
was mistaken. Plaintiff insisted that the concrete did not fall from the area identified as
the Western Hills Viaduct, but rather from the Harrison Street off ramp. Plaintiff also
submitted several photographs depicting the chunks of concrete that hit his car, other
pieces of concrete located on the ground under the ramp, and areas of deterioration
forming along sections underneath the ramp where the concrete abuts a linear metal
support and brace.
      {¶ 5} On August 25, 2011, defendant filed a document in response to plaintiff’s
latest filing. Defendant acknowledged that the location described by plaintiff matches
the location that ODOT inspected on November 22, 2010.           In addition, defendant
submitted a written description documenting the inspector’s observations from that
inspection. The inspector noted the deck showed evidence of minor cracking and that
the “rear edge has spalling with exposed resteel @ both hinges * * * small shallow
spalls along left expansion joint steel.” In addition, the inspection of the substructure
also revealed small, shallow areas of spalling.
      {¶ 6} 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.
      {¶ 7} 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.     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
defective condition developed. 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 personnel passively or 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.
      {¶ 8} Ordinarily, in a claim involving roadway defects, plaintiff must prove that
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.      The evidence points to the conclusion that
plaintiff’s damage was proximately caused by negligent bridge maintenance.
      {¶ 9} This court has previously held ODOT liable for property damage resulting
from falling debris. Elsey v. Dept. of Transportation (1989), 89-05775-AD; Alfson v.
Ohio Dept. of Transp., Ct. of Cl. No. 2010-03274-AD, 2010-Ohio-5220; Franklin v.
Dept. of Transp., Ct. of Cl. No. 2010-08811-AD, 2011-Ohio-1113.
      {¶ 10} The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to
believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. In the instant action, the trier of fact
finds that the statements of plaintiff concerning the origin of the damage-causing debris
are persuasive.   Plaintiff has proven, by a preponderance of the evidence, that he
sustained property damage as a result of defendant’s negligence regarding bridge
maintenance. Brickner v. ODOT (1999), 99-10828-AD; Rini v. ODOT (1997), 97-05649-
AD; McTear v. Dept. of Transp., Dist. 12, Ct. of Cl. No. 2008-09139-AD, 2008-Ohio-
7118; see also Franklin. Consequently, defendant is liable to plaintiff for the damage
claimed, $987.17, plus the $25.00 filing fee which may be reimbursed as compensable
costs pursuant to R.C. 2335.19. See Bailey v. Ohio Department of Rehabilitation and
Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.
                                 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




PHILLIP E. GREEN, JR.

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2011-07630-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 plaintiff in the amount of $1,012.17, which includes the filing fee. Court costs are
assessed against defendant.




                                          DANIEL R. BORCHERT
                                          Deputy Clerk

Entry cc:
Phillip E. Green, Jr.                     Jerry Wray, Director
2704 E. Towers Dr. #312                   Department of Transportation
Cincinnati, Ohio 45238                    1980 West Broad Street
                                          Columbus, Ohio 43223

9/27
Filed 10/4/11
Sent to S.C. reporter 2/16/12
