[Cite as Kile v. Ohio Dept. of Transp., 2010-Ohio-4957.]

                                       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




JACK KILE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-01719-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Jack Kile, filed this action against defendant, Department of
Transportation (ODOT), contending that his 2001 Ford F-150 truck was damaged as a
proximate cause of negligence on the part of ODOT personnel in maintaining a
hazardous condition on State Route 252 in Lorain County. Specifically, plaintiff claimed
the left rear tire on his truck was punctured by a dislodged raised pavement marker
(RPM or reflector) “south on State Route 252 just south of Sprauge Rd.”                           Plaintiff
recalled the damage incident occurred on January 7, 2010 at approximately 2:30 p.m.
Plaintiff submitted photographs depicting the damage-causing RPM and a section of
roadway area where an RPM was missing. The photographs were dated January 7,
2010. Plaintiff requested damage recovery of $215.27, an amount representing the cost
of a replacement tire.            The $25.00 filing fee was paid and plaintiff 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 road reflector on State Route 252 prior
to plaintiff’s property damage occurrence.                 Defendant denied receiving any calls or
complaints from any entity regarding a loose road reflector “prior to plaintiff’s incident.”
Defendant argued plaintiff failed to produce any evidence to establish the length of time
the RPM was dislodged from the roadway prior to his January 7, 2010 damage event.
Defendant explained the location of the reflector would correspond to “approximately
milepost 5.42 on SR 252 in Lorain County.”                    Defendant suggested, “the debris
(reflector) 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 his property
damage was attributable to conduct on the part of ODOT personnel.                            Defendant
acknowledged ODOT crews conducted snow plowing activities on roads in Lorain
County throughout the month of January 2010, including January 1, January 2, January
3, January 4, January 5, January 6, and January 7, 2010.                      State Route 252 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 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 or 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, 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.
       {¶ 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 the raised pavement marker despite the fact ODOT crews were in
the area on January 7, 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 pavement marker was originally
dislodged from the roadway be 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 him or that his property damage was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing reflector 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.            Consequently,
plaintiff’s claim is denied.
       {¶ 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
dislodged reflector.
                               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




JACK KILE

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-01719-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:

Jack Kile                                       Jolene M. Molitoris, Director
25105 Crosstie Trail             Department of Transportation
Columbia Station, Ohio 44028     1980 West Broad Street
                                 Columbus, Ohio 43223
RDK/laa
5/20
Filed 6/11/10
Sent to S.C. reporter 10/11/10
