[Cite as Holmes Cty. Sheriff's Office v. Ohio Dept. of Transp., 2011-Ohio-5123.]



                                       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




HOLMES COUNTY SHERIFF’S OFFICE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2011-03634-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Holmes County Sheriff’s Office, filed this action against
defendant, Department of Transportation (ODOT), contending Deputy Mike Myers
suffered damage to the right rear tire of his patrol car as a proximate result of
negligence on the part of ODOT in maintaining a road reflector on State Route 83 in
Holmes County.            The       damage incident occurred on February 23, 2011, at
approximately 9:18 a.m. Plaintiff requested damages in the amount of $274.17, the cost
of a replacement tire and reimbursement of the filing fee.                     The $25.00 filing fee was
paid.
        {¶2}     Defendant denied liability in this matter based on the contention that no
ODOT personnel had any notice of a loose reflector on SR 83 prior to plaintiff’s incident.
Defendant located plaintiff’s incident at milepost 5.60 on SR 83 in Holmes County.
Defendant asserted plaintiff failed to provide any evidence to establish the property
damage was attributable to any conduct on the part of ODOT. Furthermore, defendant
asserted plaintiff failed to provide any evidence indicating the length of time the road
reflector was loose or detached from the roadway surface prior to the February 23, 2011
damage occurrence.         Defendant explained SR 83 was regularly maintained in the
vicinity of plaintiff’s damage incident with ODOT personnel conducting thirteen (13)
maintenance operations on SR 83 in the past six months. Defendant further explained
ODOT was performing maintenance of signs on February 23, 2011, the day of plaintiff’s
incident.     Defendant related, “if there was a noticeable defect with any raised or
loosened pavement markers it would have immediately been repaired.”
       {¶3}     Plaintiff did not file a response.
       {¶4}     To prevail on a claim of negligence, plaintiff must prove, by a
preponderance of the evidence, that defendant owed plaintiff a duty, that it breached
that duty, and that the breach proximately caused plaintiff’s 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 a loss was
suffered 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.
       {¶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.      However, proof of notice of a dangerous condition is not
necessary when defendant 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 the property damage was caused by a defective
condition created by ODOT or that defendant knew about the particular reflector
condition prior to February 23, 2011.
      {¶7}   Ordinarily, to recover in a suit involving injury proximately caused by
roadway conditions including uprooted reflectors, 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,
      {¶8}   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 loose reflector. Therefore, in order to recover plaintiff must offer proof of
defendant’s constructive notice of the condition or 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; Gelarden 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 road reflector was present on the roadway prior to the incident forming the basis of
this claim.   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 condition 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 dislodged reflector.
       {¶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 showing ODOT personnel were routinely performing
work activities on the
       {¶12} particular section of SR 83 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 the vehicle. Prstojevic v. Dept. of Transp., Dist. 3, Ct. of Cl. No.
2009-08519-AD, 2010-Ohio-2186.
                                 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




HOLMES COUNTY SHERIFF’S OFFICE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-03634-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:

Holmes County Sheriff’s Office                    Jerry Wray, Director
8105 TR 574                                       Department of Transportation
Holmesville, Ohio 44663                           1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
6/17
Filed 6/27/11
Sent to S.C. reporter 10/4/11
