[Cite as Yarbrough v. Ohio Dept. of Transp., Dist. 12, 2011-Ohio-1115.]

                                       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




GEORGE H. YARBROUGH

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

       Defendant

        Case No. 2010-08942-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, George H. Yarbrough, filed this action against defendant,
Department of Transportation (ODOT), contending the tire on his 2009 Ford Taurus was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on Interstate 480 in Cuyahoga County.                       Specifically, plaintiff
related:    “I was driving westbound on Interstate 480, near Transportation Blvd., at
approximately 11:00 AM on August 1, 2009, when a vehicle, slightly ahead of me and to
my left, struck an object on the road” propelling the object into the path of the 2009 Ford
Taurus and causing damage to the tire when the vehicle ran over it. Plaintiff described
the damage-causing object as a “wheel cover.” In his complaint, plaintiff requested
damage recovery in the amount of $124.94, the cost of a replacement tire. The filing
fee was paid.
        {¶ 2} Defendant conducted an investigation and determined that the damage-
causing incident occurred at state milepost 21.70 or county milepost 19.55 on Interstate
480 in Cuyahoga County.              Defendant asserts that it had no “notice of the subject
condition prior to” the damage-causing incident. Defendant, “believes that the debris
existed in that location for only a relatively short amount of time before plaintiff’s
incident.” Defendant asserted that plaintiff failed to produce any evidence to establish
the length of time the debris condition existed prior to 11:00 a.m. on August 1, 2009.
Defendant also asserted that plaintiff did not offer any evidence to show the damage-
causing debris condition was attributable to any conduct on the part of ODOT.
      {¶ 3} Defendant pointed out that defendant’s “Cuyahoga County Manager
conducts roadway inspections on all state roadways within the county on a routine
basis, at least one to two times a month.” Apparently no debris was discovered at state
milepost 21.70 on Interstate 480 the last time that specific section of roadway was
inspected prior to August 1, 2009.      Defendant reviewed a six-month maintenance
jurisdiction history of the area in question and found five litter patrols were performed,
the last being on July 30, 2009. Also, defendant’s records show that sixteen litter pick-
ups were performed in the area with the last occurring on June 30, 2009 and according
to defendant, any debris found would have been picked up.
      {¶ 4} 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.
      {¶ 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.
      {¶ 7} Defendant professed liability cannot be established when requisite notice
of the damage-causing conditions cannot be proven. Generally, defendant is only liable
for roadway conditions of which it has notice, but fails to correct. Bussard. However,
proof of notice of a dangerous condition is not necessary when defendant’s own agents
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 his property damage was caused by a defective condition created by ODOT or that
defendant knew about the particular wheel cover debris condition prior to 11:00 a.m. on
August 1, 2009.
      {¶ 8} Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions including wheel cover debris, plaintiff must proof 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, maintains its highways negligently.           Denis v. Department of
Transportation (1976), 75-0287-AD. Plaintiff has not provided any evidence to prove
that ODOT had actual notice of the damage-causing condition. Therefore, in order to
recover plaintiff must offer proof of defendant’s constructive notice of the condition as
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, 48 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 wheel cover debris was present on the roadway prior to the incident forming the
basis of this claim. Plaintiff has not shown that defendant had actual notice of the
condition. Also, 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 wheel
cover debris 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 wheel cover debris on the roadway.
      {¶ 11} Evidence in the instant action is conclusive to show that plaintiff’s damage
was caused by an act of an unidentified third party. Defendant has denied liability
based on the particular premise that it had no duty to control the conduct of a third
person except in cases where a special relationship exists between defendant and
either plaintiff or the person whose conducts needs to be controlled. See Federal Steel
& Wire Corp. v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769.
However, defendant may still bear liability if it can be established if some act or
omission on the part of ODOT was the proximate cause of plaintiff’s injury. 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.
      {¶ 12} “If an 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 the 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.
      {¶ 13} 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 that ODOT personnel were periodically
performing work activities on the particular section of Interstate 480 where plaintiff’s
damage incident occurred. Plaintiff has failed to provide sufficient evidence to prove
that 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 his property. Hall v. Ohio Department of
Transportation (2000), 99-12963-AD.




                              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




GEORGE H. YARBROUGH

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

      Defendant

      Case No. 2010-08942-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:

George H. Yarbrough                               Jolene M. Molitoris, Director
19015 Van Aken Blvd.                              Department of Transportation
Apt. 406                                          1980 West Broad Street
Shaker Hts., Ohio 44122-3504                      Columbus, Ohio 43223

RDK/laa
12/1
Filed 1/11/11
Sent to S.C. reporter 3/4/11
