[Cite as Stewart v. Ohio Dept. of Transp., 2010-Ohio-5470.]

                                       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 STEWART

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-04807-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Phillip Stewart, filed this action against defendant, Department of
Transportation (ODOT), contending his 2003 Honda Accord was damaged as a
proximate cause of negligence on the part of ODOT personnel in failing to maintain
Interstate 70 in Franklin County free of a hazardous debris condition. Plaintiff described
his particular damage event relating he was traveling east on Interstate 70 “in Columbus
Ohio near Hauge Ave. [w]hen a truck struck a large piece of metal which caused it to fly
into the air and come down on my windshield and front hood and bumper.” Plaintiff
recalled the incident occurred on February 26, 2010 at approximately 11:55 a.m.
Plaintiff submitted with his complaint a “Damage Incident Report Form” that noted the
damage-causing metal debris was described as a “steel grate.” Plaintiff also submitted
a copy of a “Traffic Crash Report” compiled by a Columbus Police Officer who
investigated the damage event, which involved four vehicles including plaintiff’s 2003
Honda Accord. Furthermore, plaintiff provided photographs depicting the damage to his
car. In his complaint, plaintiff requested damages in the amount of $2,327.07, the total
cost of replacement parts and automotive repair expenses he incurred as a result of the
February 26, 2010 damage event. The filing fee was paid.
      {¶ 2} Defendant conducted an investigation and determined that the damage-
causing incident occurred at state milepost 95.00 on Interstate 70 in Franklin County.
Defendant related “ODOT did not have notice of the debris on I-70 prior to Plaintiff
Stewart’s incident.” 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 95.00 on Interstate 70 prior to the described February 26, 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 11:55 a.m.
on February 26, 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’s records (copies submitted) show ODOT did not receive any
calls or complaints from any entity referencing debris on Interstate 70 at milepost 95.00.
      {¶ 3} Additionally, defendant contended plaintiff did not prove his property
damage was proximately caused by negligent roadway maintenance on the part of
ODOT. Defendant pointed out the ODOT “Franklin County Manager conducts roadway
inspections on all state roadways within the county on a routine basis, at least one to
two times a month.” Apparently no debris was discovered at milepost 95.00 the last
time that section of Interstate 70 was inspected prior to February 26, 2010. The claim
file is devoid of any inspection record. Defendant reviewed the ODOT “Maintenance
History” (copy submitted) for the specific area of Interstate 70 covering the six-month
period preceding February 26, 2010. Defendant found “One Hundred Forty-Two (142)
Road Cruiser entries for this section of I-70” during the period from August 1, 2009 to
February 26, 2010.      Also, defendant’s records show ODOT conducted thirty-four
maintenance operations in the area during the period from August 1, 2009 to February
26, 2010 with the last time ODOT personnel were in the area prior to plaintiff’s incident
was February 23, 2010 when pothole patching was performed. According to defendant
“if ODOT personnel had found any debris it would have been picked up.”
      {¶ 4} Despite filing a response, plaintiff did not supply any evidence to establish
the length of time the damage-causing debris condition was on the roadway prior to his
property damage event. Plaintiff noted “[t]he debris could have existed for as long as 36
hours before the incident as the last time ODOT was in the area was February 23,
2010.”     Plaintiff did not provide any evidence to prove the damage-causing debris
condition was present on the roadway as early as February 23, 2010.              Plaintiff
contended ODOT was negligent in failing to remove road debris in a timely manner.
Furthermore, plaintiff argued defendant acted negligently in not conducting more
frequent road inspections.
         {¶ 5} 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.
         {¶ 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.       However, proof of notice of a dangerous condition is not
necessary when defendant actively causes 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 debris condition
prior to 11:55 a.m. on February 26, 2010.
       {¶ 8} Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions including debris, 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.
       {¶ 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, 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.
       {¶ 10} 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 debris.
       {¶ 11} Evidence in the instant action tends to show plaintiff’s damage was
caused by an act of a third party not affiliated with ODOT. Defendant has denied
liability based on the particular premise 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 conduct 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 or its agents was the proximate cause of plaintiff’s injury. Plaintiff has
failed to prove, by a preponderance of the evidence, that defendant failed to discharge a
duty owed to him, or that his 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 or its agents. Hall v. Ohio Dept. of Transp. (2006), 2006-05730-AD.
       {¶ 12} 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 Interstate 70 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. Hall v. Ohio Department of Transportation
(2000), 99-12963-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




PHILLIP STEWART

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-04807-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:

Phillip Stewart                                 Jolene M. Molitoris, Director
4575 Crystal Ball Drive                         Department of Transportation
Hilliard, Ohio 43026                            1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
6/15
Filed 7/20/10
Sent to S.C. reporter 11/5/10
