[Cite as Sarr v. Ohio Dept. of Transp., 2010-Ohio-4958.]

                                       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




NICHOLAS D. SARR

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-01794-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Nicholas D. Sarr, filed this action against defendant, Department
of Transportation (ODOT), contending his 2007 Hyundai Sonata was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a raised pavement
marker (RPM or reflector) on US Route 250 in Erie County.            Plaintiff recalled the
damage incident occurred on January 5, 2010 at approximately 4:10 a.m. and he
located the damage-causing RPM on US Route 250 North “about the 5.5 mile marker.”
According to plaintiff, as he drove over the RPM it “flew up and struck the driver’s side
rocker panel on (his car) and broke the rocker panel off below the driver’s side rear
passenger door.” Plaintiff suggested the damage-causing reflector had been uprooted
by a snow plow when ODOT personnel conducted snow removal operations on US
Route 250. Plaintiff pointed out he is an employee of ODOT and had knowledge ODOT
crews conducted snow removal operations on January 5, 2010 before 4:10 a.m.
Plaintiff requested damage recovery in the amount of $434.22, the cost of automotive
repair needed resulting from the described incident. Plaintiff submitted the $25.00 filing
fee and requested reimbursement 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 reflector on US Route 250 prior to
plaintiff’s incident.     Defendant argued plaintiff failed to produce any evidence to
establish the length of time the reflector had been dislodged from the roadway prior to
his January 5, 2010 property damage occurrence. Defendant explained the location of
the reflector would correspond to “approximately milepost 5.50 on US 250 in Erie
County.” Defendant suggested “the debris (reflector) existed in that location for only a
relatively short amount of time before plaintiff’s incident.”
        {¶ 3} Defendant argued plaintiff did not offer sufficient evidence to prove his
property damage was proximately caused by negligent maintenance activity on the part
of ODOT. Defendant explained the ODOT “Erie County Transportation Manager travels
each state highway twice a month in Erie County and looks for potholes, low berms, and
other safety hazards and records any deficiencies she finds on Route Inspection
Reports.” Defendant submitted records reflecting the section of US Route 250 in the
vicinity of milepost 5.50 was inspected on December 27, 2009 and January 3, 2010.
The records do not show any problems were detected involving loose reflectors.
        {¶ 4} Defendant contended plaintiff did not offer evidence to prove his property
damage was attributable to conduct on the part of ODOT personnel.                            Defendant
acknowledged ODOT crews conducted snow plowing activities on roads in Erie County
continuously from December 30, 2009 to January 6, 2010. US Route 250 was included
in the snow plowing activity. Defendant seemingly argued that if this court finds ODOT
snow plowing uprooted the pavement marker and proximately caused plaintiff’s property
damage, ODOT should be immune from liability. Defendant further argued that snow
plowing that results in hazardous conditions such as loose road reflectors being
deposited on the roadway “was necessary and reasonable for the safety of the traveling
public and done in a manner consistent with normal standards.” Defendant stated R.C.
5501.411 grants ODOT “the right to remove ice and snow from state highways and the


        1
          R.C. 5501.41 covering DOT’s discretionary authority to remove snow and ice states:
        “The director of transportation may remove snow and ice from state highways, purchase the
necessary equipment including snow fences, employ the necessary labor, and make all contracts
necessary to enable such removal. The director may remove snow and ice from the state highways
within municipal corporations, but before doing so he must obtain the consent of the legislative authority
of such municipal corporation. The board of county commissioners of county highways, and the board of
township trustees on township roads, shall have the same authority to purchase equipment for the
authority to do whatever is necessary to conduct such removal activities.” Defendant
related, “assuming that a snowplow of Defendant did cause the raised pavement marker
to become dislodged, Defendant contends that it is given statutory authority to do
whatever is reasonable and necessary to remove snow.”                     Contrary to defendant’s
argument concerning “whatever is reasonable and necessary,” the court finds it is
neither reasonable nor necessary to create a dangerous roadway hazard while in the
course of performing snow removal activities. Wertz v. Ohio Dept. of Transp., Ct. of Cl.
No. 2008-11656-AD, 2009-Ohio-6605.
       {¶ 5} The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to
believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court finds the assertions of
plaintiff persuasive in regard to the contention the reflector was dislodged from the
roadway by an ODOT snow plow.
       {¶ 6} 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.
       {¶ 7} Defendant has the duty to maintain its highway 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

removal of and to remove snow and ice as the director has on the state highway system.”
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 a duty to exercise
reasonable care for the motoring public when conducting snow removal operations.
Andrews v. Ohio Department of Transportation (1998), 97-07277-AD; Peters v. Dept. of
Transp., Ct. of Cl. No. 2008-11630-AD, 2009-Ohio-3031.
       {¶ 8} Generally, 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. In the instant claim,
plaintiff has offered sufficient proof to establish the damage to his vehicle was
proximately caused by the acts of defendant’s personnel in conducting snow removal
operations. See McFadden v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-02881-AD,
2004-Ohio-3756; also Ruminski v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-05213-AD,
2005-Ohio-4223; Schultz v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-05125-AD, 2008-
Ohio-6457.
       {¶ 9} “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.
       {¶ 10} Plaintiff has proven his property damage was caused by the acts of ODOT
personnel. See Vitek v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-09258-AD, jud,
2005-Ohio-1071; Zhang v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-07811-AD, 2008-
Ohio-7077; Barnett v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-08809-AD, 2009-Ohio-
1589. Consequently, defendant is liable to plaintiff for the damages claimed, $434.22,
plus the $25.00 filing fee which may be reimbursed as compensable costs pursuant to
R.C. 2335.19. See Bailey v. Ohio Department of Rehabilitation and Correction (1990),
62 Ohio Misc. 2d 19, 587 N.E. 2d 990.




                              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




NICHOLAS D. SARR

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-01794-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 plaintiff in the amount of $459.22, which includes the filing fee. Court costs are
assessed against defendant.




                                 DANIEL R. BORCHERT
                                 Deputy Clerk

Entry cc:

Nicholas D. Sarr                 Jolene M. Molitoris, Director
1313 Carr Street                 Department of Transportation
Sandusky, Ohio 44870             1980 West Broad Street
                                 Columbus, Ohio 43223
RDK/laa
5/18
Filed 6/14/10
Sent to S.C. reporter 10/11/10
