[Cite as Alfson v. Ohio Dept. of Transp., 2010-Ohio-5220.]

                                       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




DENNIS ALFSON

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2010-03274-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Dennis Alfson, filed this action against defendant, Department of
Transportation (ODOT), contending that his truck was damaged as a proximate cause
of negligence on the part of ODOT in maintaining an Interstate 75 bridge spanning the
Ohio Turnpike in Wood County. Plaintiff explained that he was traveling on the Ohio
Turnpike on November 8, 2009, “about noon” and as his truck passed under “the Ohio
Turnpike, Route 80” overpass bridge (Interstate 75), a “chunk of concrete” spalled from
the bridge striking the front of his truck causing extensive damage to the vehicle.
Plaintiff seeks damage recovery in the amount of $2,500.00 the statutory maximum
allowed under R.C. 2743.10.              Plaintiff submitted an estimate for truck repair in the
amount of $2,741.90. The filing fee was paid.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge with the overpass bridge spanning the Ohio Turnpike or
Interstate 80 prior to plaintiff’s damage event. Defendant related that ODOT records at
the “district office in Wood County show no reports of falling debris prior to plaintiff’s
incident.”     Defendant further related that “the evidence suggests the damage (to
plaintiff’s vehicle) was not caused by debris from the bridge.” Defendant acknowledged
that plaintiff called the local ODOT office on November 12, 2009 and an ODOT
employee was dispatched to the bridge site to investigate the matter of bridge spalling.
Defendant submitted a copy of an e-mail from ODOT employee, Herman L. Munn, who
inspected the Interstate 75 bridges on November 12, 2009. Munn wrote, “I check I-
80/90 WB overpass under I-75 all three bridges, (I) did not see any significant spallings
that could have fell off bridge.”
        {¶ 3} Defendant submitted two photographs (taken April 13, 2010) depicting the
bridge in question.     One photograph depicts the bridge deck under Interstate 75
spanning westbound Interstate 80. Defendant observed this photograph does not show
any spalling or cracking on the depicted bridge deck. The trier of fact did not find any
deck deterioration depicted in reviewing the photograph. Defendant pointed out the
second photograph “shows some debris on the eastbound direction of I-80 and plaintiff
was traveling in the westbound direction of I-80.” After reviewing this photograph, the
trier of fact finds the multiple debris shown on the eastbound shoulder of Interstate 80,
in all probability emanated from spalling on the overpass bridge structure. Furthermore,
the trier of fact finds that the debris depicted could have emanated from the bridge
structure in the westbound lanes and then been propelled into the eastbound shoulder
area.
        {¶ 4} Defendant asserted that plaintiff failed to produce evidence to prove his
property damage was proximately caused by negligent maintenance on the part of
ODOT. Defendant advised that ODOT “maintains an active maintenance history for I-
75 and there were eighty-two (82) maintenance repairs in the northbound and
southbound direction of I-75 in the past six months before plaintiff’s incident.”
Defendant noted that none of the maintenance activities “revealed any problems with
the overpass.” Defendant contended that plaintiff failed to prove his property damage
was attributable to conduct on the part of ODOT personnel.
        {¶ 5} Plaintiff filed a response pointing out that the submitted photograph
“showed that concrete from this bridge is spalling.” Although plaintiff acknowledged that
the spalling debris was in the opposite lane of travel he argued, “it is reasonable to
assume the bridge would have the same problems on each lane of travel.” Plaintiff
further argued that since defendant conducted eighty-two maintenance operations in the
vicinity of his incident during the preceding six months ODOT personnel “should have
noticed the condition (of the overpass bridge) prior to the incident.” Plaintiff contended
that defendant was negligent in not correcting a known dangerous condition prior to the
November 8, 2009 damage event.
      {¶ 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. 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.
      {¶ 7} 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.
      {¶ 8} 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.     The trier of fact is precluded from making an inference of
defendant’s constructive notice, unless evidence is presented in respect to the time the
defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458. However, proof of notice of a dangerous condition is
not necessary when defendant’s own personnel passively or 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.
      {¶ 9} Ordinarily, in a claim involving roadway defects, plaintiff must prove that
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.      The evidence points to the conclusion that
plaintiff’s damage was proximately caused by negligent bridge maintenance.
      {¶ 10} This court has previously held ODOT liable for property damage resulting
from falling debris. Elsey v. Dept. of Transportation (1989), 89-05775-AD. Plaintiff has
proven, by a preponderance of the evidence, that he sustained property damage as a
result of defendant’s negligence regarding bridge maintenance.         Brickner v. ODOT
(1999), 99-10828-AD; Rini v. ODOT (1997), 97-05649-AD, McTear v. Dept. of Transp.,
Dist. 12, Ct. of Cl. No. 2008-09139-AD, 2008-Ohio-7118.
      {¶ 11} 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. In the instant action, the trier of fact
finds that the statements of plaintiff concerning the origin of the damage-causing debris
are persuasive. Consequently, defendant is liable to plaintiff for the damage claimed,
$2,500.00, 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




DENNIS ALFSON

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

      Case No. 2010-03274-AD

Clerk Miles C. Durfey


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 $2,525.00, which includes the filing fee. Court costs are
assessed against defendant.




                                        MILES C. DURFEY
                                        Clerk

Entry cc:

Scot A. Stevenson                       Jolene M. Molitoris, Director
441 Wolf Ledges Parkway #400     Department of Transportation
Akron, Ohio 44311                1980 West Broad Street
                                 Columbus, Ohio 43223
RDK/laa
6/3
Filed 6/21/10
Sent to S.C. reporter 10/22/10
