[Cite as Davis v. Ohio Dept. of Transp., 2016-Ohio-1109.]




AMY DAVIS                                              Case No. 2015-00895-AD

       Plaintiff                                       Clerk Mark H. Reed

       v.
                                                       MEMORANDUM DECISION
OHIO DEPARTMENT OF
TRANSPORTATION

       Defendant

        {¶1} Plaintiff Amy Davis (hereinafter “plaintiff”) filed this claim on October 19,
2015 to recover damages which occurred on October 12, 2015 when her vehicle was
struck by an orange construction cone while traveling on I-70 eastbound at Hague
Avenue in Franklin County, Ohio. This road is a public road maintained by the Ohio
Department of Transportation (hereinafter “ODOT”).                       Plaintiff’s vehicle sustained
damages in the amount of $1,543.49.                         Plaintiff maintains a collision insurance
deductible of $500.00.
        {¶2} In order to recover on a claim for roadway damages against ODOT, Ohio
law requires that a motorist/plaintiff prove all of the following:
        {¶3} That the plaintiff’s motor vehicle received damages as a result of coming
into contact with a dangerous condition on a road maintained by ODOT.
        {¶4} That ODOT knew or should have known about the dangerous road
condition.
        {¶5} That ODOT, armed with this knowledge, failed to repair or remedy the
dangerous condition in a reasonable time.
        {¶6} In this claim, the Court finds that the plaintiff did prove that her vehicle
received damages and that those damages occurred as a result of the plaintiff’s vehicle
coming into contact with a dangerous condition on a road maintained by ODOT.
Case No. 2015-00895-AD                     -2-              MEMORANDUM DECISION




      {¶7} The next element that a plaintiff must prove to succeed on a claim such as
this is to show that ODOT knew or should have known about this dangerous condition.
Based on the evidence presented, the Court is unable to find that ODOT had actual
knowledge of the dangerous condition. Likewise, the Court is unable to find that ODOT
should have known about this dangerous condition and thus would have had
constructive notice about the highway danger.        Constructive notice is defined as
“(n)otice arising from the presumption of law from the existence of facts and
circumstances that a party has a duty to take notice of...Notice presumed by law to have
been acquired by a person and thus imputed to that person.” (Black’s Law Dictionary at
1090 8th Ed. 2004.)
      {¶8} In order for there to be constructive notice, a plaintiff must prove that
sufficient time has passed after the dangerous condition first appears, so that under the
circumstances ODOT should have gained knowledge of its existence. This, the plaintiff
has been unable to do.
      {¶9} In the Investigation Report filed December 23, 2015, ODOT stated that the
location of the incident was on IR 70 in Franklin County at mile marker 95.00. This
section of the roadway has an average daily traffic count of between 118,960 and
132,160 vehicles. Despite this volume of traffic, ODOT had received no notice of any
construction cones traveling onto this section of the road thus, the Court is unable to
find that ODOT knew about the road debris. Within the past six months, ODOT had
also conducted two hundred seven (207) maintenance operations on IR 70 in Franklin
County without discovering any loose debris.      If any cones had traveled onto this
section of the roadway, it is probable that it would likely have been discovered by
ODOT’s work crews. Thus, the Court cannot find that ODOT should have known about
the cones in the roadway. It is thus likely that the orange construction cone had only
recently traveled into the roadway and that Ohio Department of Transportation had not
Case No. 2015-00895-AD                       -3-             MEMORANDUM DECISION




been notified regarding this hazard. How the cone traveled into the roadway is an open
question. However, there was no evidence that ODOT negligently placed the cone or
was responsible by any act of commission or omission for the cone being in the path of
plaintiff’s vehicle on October 12, 2015.
       {¶10} Under Ohio law, the burden of proof in civil claims like this one rests on the
plaintiff. The plaintiff, to succeed on the claim, must prove that ODOT either knew or
reasonably should have known about the road debris. Admittedly, this places a difficult
task on a plaintiff in a road debris claim against ODOT. However, this is the law that is
binding on this Court at the present time.
       {¶11} Finally, the law in Ohio is that ODOT is not an absolute insurer of a
motorist’s safety on the highway. The department is only liable for damage when the
Court finds that it was negligent. This the Court is unable to do.
       {¶12} Since the plaintiff is unable to prove that the defendant knew or should
have known about this dangerous condition, the claim must fail.




AMY DAVIS                                     Case No. 2015-00895-AD

      Plaintiff                               Clerk Mark H. Reed

      v.
                                              ENTRY OF ADMINISTRATIVE
OHIO DEPARTMENT OF                            DETERMINATION
TRANSPORTATION

      Defendant

       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 the defendant. Court costs shall be absorbed by the Court.
Case No. 2015-00895-AD          -4-            MEMORANDUM DECISION




                                 MARK H. REED
                                 Clerk

Entry cc:


Amy Davis                        Jerry Wray, Director
4929 Elks Drive                  Ohio Department Of Transportation
Columbus, Ohio 43214             19890 West Broad Street
                                 Mail Stop 1500
                                 Columbus, Ohio 43223


Filed 2/2/16
Sent to S.C. Reporter 3/18/16
