[Cite as Hyman v. Ohio Dept. of Transp., 2010-Ohio-6545.]

                                      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




GEOFFREY L. HYMAN

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-03304-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Geoffrey L. Hyman, filed this action against defendant,
Department of Transportation (ODOT), contending the tire on his 2002 Dodge Dakota
was damaged as a proximate cause of negligence on the part of ODOT personnel in
conducting snow removal operations on State Route 49 in Paulding County.
Specifically, plaintiff asserted the tire on his vehicle was damaged when his vehicle ran
over a dislodged road reflector laying on the roadway. Plaintiff located the damage
incident at “about 1.5 miles north of Payne, Ohio on State Route 49 between County
roads 94 and 106.” Plaintiff advised “[a] snowplow knocked 2 reflectors out of the road
and I ran over one and ruined my tire.” However, in his complaint, plaintiff noted “I did
not see a snowplow knock the reflectors out, but I don’t know how else it would be
possible.” Plaintiff recalled the described damage event occurred on February 18, 2010
at approximately 9:20 a.m.           Plaintiff requested damage recovery in the amount of
$206.36, the total cost of a replacement tire. The filing fee was paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of a loose or defective reflector on the roadway
prior to plaintiff’s February 18, 2010 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 7.07 and 8.08 on SR 49 in Paulding
County.” Defendant asserted plaintiff did not produce any evidence to establish the
length of time that the loose reflectors were on the roadway prior to 9:20 a.m. on
February 18, 2010.       Defendant suggested the particular reflector, “existed in that
location for only a relatively short amount of time before plaintiff’s incident.”
       {¶ 3} Defendant contended that plaintiff did not offer evidence to prove property
damage was attributable to conduct on the part of ODOT personnel.                   Defendant
acknowledged that the roadway between mileposts 7.07 and 8.08 was regularly
maintained and submitted a “Maintenance History” showing the last time that an ODOT
work force was in the area prior to February 18, 2010 was on January 28, 2010 when
sign maintenance was conducted.           Defendant asserted plaintiff did not offer any
evidence to prove ODOT snow plowing activity dislodged the reflectors. Defendant
characterized plaintiff’s claimed cause of the reflector being dislodged from the roadway
surface as “an assumption.” The claim file is devoid of any record of snow removal
operations conducted by ODOT on State Route 49. Defendant asserted that, “if there
was a noticeable defect with any raised or loosened pavement marker, it would have
immediately been repaired.”
       {¶ 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 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.
       {¶ 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. 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.
       {¶ 6} 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. There is no proof that defendant had actual
notice or constructive notice of the dislodged raised pavement marker.
       {¶ 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’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. No evidence has been
submitted to prove that the damage-causing pavement marker was originally dislodged
from the roadway by defendant’s personnel.
       {¶ 8} “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.
       {¶ 9} 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 reflector 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.               Consequently,
plaintiff’s claim is denied.
       {¶ 10} Finally, 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.
Therefore, defendant is not liable for any damage that plaintiff may have suffered from
the dislodged reflector.




                                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




GEOFFREY L. HYMAN

       Plaintiff

       v.
OHIO DEPARTMENT OF TRANSPORTATION

        Defendant
        Case No. 2010-03304-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:

Geoffrey L. Hyman                                Jolene M. Molitoris, Director
415 Arda Avenue                                  Department of Transportation
Payne, Ohio 45880                                1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
8/3
Filed 9/20/10
Sent to S.C. reporter 12/29/10
