[Cite as Nelson v. Dept. of Transp., 2011-Ohio-3540.]

                                       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




RHONDA LINETTE NELSON

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-09965-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Rhonda L. Nelson, filed this action against defendant,
Department of Transportation (ODOT), contending the tire on her 2006 Volkswagen
Passat was damaged as a proximate cause of negligence on the part of ODOT in
maintaining a hazardous condition on Interstate 70 West in Belmont County. Plaintiff
noted she was traveling west on Interstate 70 “towards St. Clairsville, Ohio” when her
vehicle struck a “chunk of cement” on the roadway. Plaintiff related “[i]t was raining out
and I was traveling 25 mph” when her car struck the debris causing tire damage to the
vehicle. Plaintiff recalled the described damage incident occurred on July 9, 2010 at
approximately 5:30 p.m. In her complaint, plaintiff requested damages in the amount of
$170.43, the 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 debris on Interstate 70 prior to plaintiff’s
property damage occurrence. Defendant denied receiving any calls or complaints from
any entity regarding the particular debris condition that ODOT located “near state
milepost 216.00 or county milepost 17.36 on I-70 in Belmont County.”               Defendant
advised no prior calls or complaints were received for debris at that location despite the
fact “[t]his section of roadway has an average daily traffic count between 29,710 and
47,020 vehicles.” Defendant asserted plaintiff did not produce any evidence to establish
the length of time the cement debris existed at state milepost 216.00 prior to 5:30 p.m.
on July 9, 2010. Defendant suggested “that the debris existed in that location for only a
relatively short amount of time before plaintiff’s incident.” Defendant further 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.
      {¶ 3} Defendant pointed out that the ODOT “Belmont 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 216.00 on
Interstate 70 the last time that specific section of roadway was inspected prior to July 9,
2010. Defendant reviewed a six-month maintenance jurisdiction history of the area in
question and found “one (1) litter pickup and four (4) litter patrols were performed
around state milepost 216.0 in the westbound direction before plaintiff’s incident.” The
last time ODOT personnel conducted maintenance in the area prior to July 9, 2010 was
on June 23, 2010. According to defendant, “if ODOT personnel had found any debris it
would have been picked up.”
      {¶ 4} For plaintiff to prevail on a claim of negligence, she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her 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 she 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.
      {¶ 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.
      {¶ 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.
      {¶ 7} Defendant professed liability cannot be established when requisite notice
of the damage-causing conditions cannot be proven. Generally, defendant is only liable
for roadway conditions of which it has notice, but fails to correct. Bussard. However,
proof of notice 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 her property damage was caused by a defective condition created by ODOT or that
defendant knew about the particular cement debris condition prior to 5:30 p.m. on July
1, 2010.
      {¶ 8} Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions including cement 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
that ODOT had actual notice of the damage-causing 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, 47 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; Gerlarden 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 cement debris 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 the condition.
Also, 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 cement debris
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 cement debris on the roadway.
      {¶ 11} 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 to show that ODOT personnel were periodically
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
that defendant maintained a hazardous condition on the roadway which was the
substantial or sole cause of her 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 her property. 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




RHONDA LINETTE NELSON

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-09965-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:

Rhonda Linette Nelson                           Jerry Wray, Director
311 Jefferson Avenue            Department of Transportation
Wheeling, West Virginia 26003   1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
2/24
Filed 4/7/11
Sent to S.C. reporter 7/8/11
