[Cite as Justice v. Ohio Dept. of Transp., 2010-Ohio-3156.]

                                       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




RICHARD L. JUSTICE

         Plaintiff

         v.

OHIO DEPT. OF TRANSPORTATION

         Defendant

         Case No. 2009-09124-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



         {¶ 1} Plaintiff, Richard L. Justice, filed this action against defendant, Department
of Transportation (ODOT), contending his 1995 Chevrolet Tahoe was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a raised pavement
marker (RPM or reflector) on Interstate 270 in Franklin County. Plaintiff recalled the
damage incident occurred on November 13, 2009 at approximately 3:30 p.m. and he
located the damage-causing RPM on Interstate 270 South near “the divide where traffic
goes south by-passing Main St. and I-70 on the eastside of Columbus.” According to
plaintiff, “[a]s I changed lanes my tires (left side) dislodged a highway reflector and its
metal frame” causing the dislodged RPM to puncture the left rear tire of the 1995
Chevrolet Tahoe as well as puncturing the left rear quarter panel, side molding, and rear
bumper of the vehicle. Plaintiff implied the damage-causing RPM was defective and
negligently maintained.            Plaintiff requested damage recovery in the amount of
$1,326.05, the cost of a replacement tire and automotive repair expenses. The $25.00
filing fee was paid and plaintiff requested recovery of that cost along with his damage
claim.
         {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of a loose or defective RPM on the roadway prior
to plaintiff’s November 13, 2009 property damage occurrence.           Defendant denied
receiving any calls or complaints from any entity regarding a loose reflector on the
roadway, which ODOT located “between mileposts 42.82 and 41.32 on I-270 in Franklin
County.” Defendant asserted plaintiff did not produce any evidence to establish the
length of time that the loose RPM was on the roadway prior to 3:30 p.m. on November
13, 2009. Defendant suggested the particular RPM “existed in that location for only a
relatively short amount of time before plaintiff’s incident.”
         {¶ 3} Defendant contended plaintiff did not offer any evidence to prove his
property damage was proximately caused by any conduct attributable to ODOT
personnel. Defendant explained ODOT conducted various maintenance operations on
this particular section of Interstate 270 during the six-month period preceding November
13, 2009. Defendant’s records (copies submitted) also show ODOT “had conducted
one hundred seventy-four (174) maintenance operations in the area during the six-
month period prior to the day of plaintiff’s incident.” Defendant’s records show ODOT
operated “Road Cruisers” on Interstate 270 on November 13, 2009 and this activity
covered the area where plaintiff ran over the dislodged RPM.           Apparently ODOT
personnel did not discover any problems with any RPM on Interstate 270 on November
13, 2009 when “Road Cruisers” were in operation. Defendant stated “if there was a
noticeable defect with a raised or loosened pavement marker, it would have
immediately been repaired.” Defendant argued it did not believe ODOT breached any
duty of care owed to the motoring public in regard to roadway maintenance.
         {¶ 4} Plaintiff filed a response insisting his property damage was proximately
caused by defendant’s negligence in maintaining a defective RPM on Interstate 270.
Plaintiff submitted several photographs depicting the damage-causing reflector which he
referenced as a “Stimonsite 96 snow plowable raised pavement markers Serial Number
2199 N 146.” After reviewing the photographs, the trier of fact finds the RPM depicted
appears to be almost totally intact except for the absence of a piece of reflective plastic
and in good condition with all metal structure present. Plaintiff argued that if ODOT had
properly maintained the particular RPM it “should not fail in a roadways 15 year life
span.”     Therefore, plaintiff suggested the damage-causing RPM “was not installed
correctly during repairs or resurfacing of the roadway.” Plaintiff observed any RPM is
“susceptible to becoming dislodged during road surface snow removal during the winter
months.” According to defendant’s submitted maintenance records, ODOT personnel
did not conduct any snow removal operations on Interstate 270 during the six-month
period preceding November 13, 2009.                  Furthermore, the ODOT records show no
“Surface Paving” was conducted between mileposts 42.82 and 41.32 during the six-
month period referenced. Plaintiff contended he does not bear the burden “to product
evidence to indicate how long the (RPM) was loose prior to the incident.” Plaintiff also
contended his property damage was proximately caused by negligence on the part of
ODOT in failing to properly install and inspect the damage-causing RPM.
        {¶ 5} In support of his contention that the reflector his vehicle struck failed as a
result of negligent maintenance, plaintiff filed a copy of a research report (dated April
2009) conducted by the University of Kentucky College of Engineering for the
Commonwealth of Kentucky Transportation Cabinet.                        The subject matter of this
                    1
research report         is the “Evaluation Of The Use Of Snow Plowable Raised Pavement
Markers.” The objective of the research study was “to evaluate the effectiveness and
durability of snowplowable raised pavement markers (RPM) installed on the RPM
system in Kentucky” (page 1 Executive Summary).                      Plaintiff pointed out the study
concluded any installed RPM should have a “15 year life span.” The specific language
used in the research study under “Conclusions” on page 10 line 5 in regard to 15 years
was the following: “Using the installation cost along with the cost of lense replacement
on a three-year cycle results in a total cost of about $30 per marker over a 15 year
pavement life.” Plaintiff maintained the research report constitutes sufficient evidence to
prove the RPM on Interstate 270 that damaged his truck was negligently installed.
Conversely, the trier of fact finds the research study provides no weight in regard to
proof on the issue that the damage-causing RPM on Interstate 270 was negligently
installed or inspected.
        {¶ 6} Additionally, plaintiff submitted a copy of a “MoDOT (Missouri Department


        1
           The research report contained the following disclaimer:
         “The contents of this report reflect the views of the authors who are responsible for the facts and
accuracy of the data presented herein. The contents do not necessarily reflect the official views or
policies of the University of Kentucky or the Kentucky Transportation Cabinet. This report does not
constitute a standard, specification, or regulation.”
of Transportation) Research Office RAC E-Mail Request” requesting information from
other states about roadway RPM becoming dislodged during the course of snow
plowing activities. Plaintiff stated road reflectors “are susceptible to becoming dislodged
during snow removal during the winter months.” Plaintiff did not offer evidence to prove
the reflector his vehicle struck had been dislodged by an ODOT snow plow at sometime
prior to 3:30 p.m. on November 13, 2009.
       {¶ 7} 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.
       {¶ 8} 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.
       {¶ 9} 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. Ohio Department of Transportation (1986), 31 Ohio
Misc. 2d 1, 31 OBR 64, 507 N.E. 2d 1179. However, proof of a dangerous condition is
not necessary when defendant’s own agents 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
loosened reflector prior to 3:30 p.m. on November 13, 2009.
      {¶ 10} Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions including loosened reflectors, plaintiff must prove that either: 1)
defendant had actual or constructive notice of the reflector 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 loosened reflector condition. Therefore, in order to
recover plaintiff must offer proof of defendant’s constructive notice of the condition as
evidence to establish negligent maintenance.
      {¶ 11} “[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.
      {¶ 12} Plaintiff has not produced any evidence to indicate the length of time that
the loosened road reflector was present on the roadway prior to the incident forming the
basis of this claim. Plaintiff has not shown that defendant had actual notice of any
problem with the RPM.       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 loosened reflector 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 a defective RPM.
       {¶ 13} Additionally, 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
frequently performing work activities on the particular section of Interstate 270 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




RICHARD L. JUSTICE

      Plaintiff

      v.
OHIO DEPT. OF TRANSPORTATION

        Defendant

         Case No. 2009-09124-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:

Richard L. Justice                                Jolene M. Molitoris, Director
2033 Burwell Drive                                Department of Transportation
Columbus, Ohio 43209                              1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
2/23
Filed 3/12/10
Sent to S.C. reporter 7/1/10
