[Cite as Wolf v. Dept. of Transp,, 2010-Ohio-6191.]

                                       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




MELANIE WOLF

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-02600-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Melanie Wolf, filed this action against defendant, Department of
Transportation (ODOT), contending her 2002 Dodge Neon was damaged as a
proximate cause of negligence on the part of ODOT personnel in creating a hazardous
roadway condition on Interstate 76 West in Medina County. Plaintiff related she was
traveling west on Interstate 76 from Wadsworth, Ohio, when her automobile “hit
something in the road” that she thought “was a clump of packed snow from the roads
not being plowed very well.” Plaintiff recalled the described incident occurred on Friday,
January 8, 2010 at approximately 10:18 a.m. and she was traveling at a speed of
approximately 60 mph at the time. Plaintiff further related she “did not see the object”
her vehicle hit and continued onto her destination. According to plaintiff, her stepfather
examined her 2002 Dodge Neon on January 10, 2010 and discovered “damage to my
front bumper.” Plaintiff filed this complaint requesting damage recovery in the amount
of $500.00, her insurance coverage deductible for automotive repair. 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 76 prior to plaintiff’s
property damage occurrence. Defendant denied receiving any calls or complaints from
any entity regarding “ice or other debris on I-76 at the time of plaintiff’s incident.”
Defendant argued plaintiff failed to produce any evidence to establish the length of time
the debris condition was on the roadway prior to her January 8, 2010 damage event.
Defendant explained the location of the debris would correspond to “is at milepost 9.0
on I-76 in Medina County.” Defendant suggested, “the debris existed in that location for
only a relatively short amount of time before plaintiff’s incident.”
        {¶ 3} Defendant contended plaintiff did not offer evidence to prove her property
damage was attributable to conduct on the part of ODOT personnel.                            Defendant
acknowledged ODOT crews conducted snow plowing activities on roads in Medina
County throughout the day of January 8, 2010. Interstate 76 was included in the snow
plowing activity on January 8, 2010. Defendant seemingly argued that if this court finds
ODOT snow plowing created the damage-causing debris condition and proximately
caused plaintiff’s property damage, ODOT should be immune from liability. Defendant
further argued snow plowing that results in hazardous conditions 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 authority to do
whatever is necessary to conduct such removal activities.”                        Defendant related,
“assuming that a snowplow of Defendant did cause some snow to pack, 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.


        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
       {¶ 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. 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 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 defendant had actual notice or
constructive notice of any debris condition despite the fact ODOT crews were in the
area on January 8, 2010.
       {¶ 7} In order to prove a breach of the duty to maintain the highways, plaintiff

removal of and to remove snow and ice as the director has on the state highway system.”
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.                 Evidence is
inconclusive whether or not the damage-causing debris condition was originally created
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 her or that her property damage was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing debris condition 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.
       {¶ 10} Finally, plaintiff has not produced any evidence to infer 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 plaintiff may have suffered from the
debris her vehicle struck.
                               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




MELANIE WOLF

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-02600-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:

Melanie Wolf                                    Jolene M. Molitoris, Director
1145 Townsview Place                            Department of Transportation
Wooster, Ohio 44691                             1980 West Broad Street
                                 Columbus, Ohio 43223
RDK/laa
7/15
Filed 8/17/10
Sent to S.C. reporter 12/10/10
