[Cite as Corrao v. Ohio Dept. of Transp., 2011-Ohio-6882.]



                                      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




SAM CORRAO

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant


Case No. 2011-05203-AD

Acting Clerk Daniel R. Borchert

                                     MEMORANDUM DECISION

                                          FINDINGS OF FACT
        {¶1}     On January 20, 2011, at approximately 4:45 p.m., plaintiff, Sam Corrao,
was traveling on Interstate 480 in the far right lane when his automobile struck a “big
chunk of concrete” in the traveled portion of the roadway.               The debris caused
substantial damage to plaintiff’s vehicle.
        {¶2}     Plaintiff filed this complaint seeking to recover $716.89, his costs for
automotive repair. Plaintiff asserted that he sustained these damages as a result of
negligence on the part of defendant, Ohio Department of Transportation (ODOT), in
maintaining the roadway. The filing fee was paid.
        {¶3}     Defendant has denied liability based on the fact that it had no knowledge
of the debris on I-480 prior to plaintiff’s incident.        Defendant related that ODOT’s
investigation documents that the location of the roadway defect “would be at state
milepost 9.44 or county milepost 7.27 on I-480 in Cuyahoga County.” Defendant denied
receiving any prior calls or complaints about debris in the vicinity of that location despite
the fact that “[t]his section of roadway has an average daily traffic count” of over
100,000 vehicles.     Defendant asserted that plaintiff did not offer any evidence to
establish the length of time that any debris existed in the vicinity of milepost 9.44 on I-
480 prior to plaintiff’s incident. Defendant suggested that “the debris existed in that
location for only a relatively short amount of time before plaintiff’s incident.”
       {¶4}   Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “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 in the vicinity of plaintiff’s incident the last time
that section of roadway was inspected prior to January 20, 2011. The claim file is
devoid of any inspection record. Defendant argued that plaintiff has failed to offer any
evidence to prove that his property damage was attributable to any conduct on the part
of ODOT personnel.      Defendant stated that, “[a] review of the six-month maintenance
history [record submitted] for the area in question reveals that one hundred thirty
maintenance operations were performed.” Defendant noted that the last time ODOT
personnel were at milepost 9.44 was January 18, 2011, Defendant maintained that, “if
ODOT personnel had found any debris it would have been picked up.”
       {¶5}   Plaintiff did not file a response.
                                   CONCLUSIONS OF LAW
       {¶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. 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.
       {¶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 conditions or defects 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. There is no evidence that defendant had actual notice of the
debris on I-480 prior to the afternoon of January 20, 2011.
       {¶9}    Therefore, to find liability, plaintiff must prove that ODOT had constructive
notice of the debris.     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 specific condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458.
       {¶10} In order for there to be constructive notice, plaintiff must show 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 . Size of the defect is insufficient to show
notice or
       {¶11} duration of existence. O’Neil v. Department of Transportation (1988), 61
Ohio Misc. 2d 287, 587 N.E. 2d 891. “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. No evidence has shown that ODOT had constructive notice of the concrete
debris.
       {¶12} Generally, in order to recover in a suit involving damage proximately
caused by roadway conditions including debris plaintiff must prove that either:          1)
defendant had actual or constructive notice of the debris 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 produced any evidence to infer that defendant, in
a general sense, maintains its highways negligently or that defendant’s acts caused the
defective conditions. Herlihy v. Ohio Department of Transportation (1999), 99-07011-
AD. Therefore, defendant is not liable for any damage plaintiff may have suffered from
the concrete debris.
       {¶13} In the instant claim, plaintiff has failed to introduce sufficient evidence to
prove that defendant maintained known hazardous roadway conditions. Plaintiff failed
to prove that his property damage was connected to any conduct under the control of
defendant, or that defendant was negligent in maintaining the roadway area, or that
there was any actionable 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.
                                  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

SAM CORRAO

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-05203-AD

Acting 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
                                                   Acting Clerk

Entry cc:
Sam Corrao                                         Jerry Wray, Director
26807 Skyline Drive                                Department of Transportation
Olmsted Township, Ohio 44138                       1980 West Broad Street
                                                   Columbus, Ohio 43223
SJM/laa
7/21
Filed 8/11/11
Sent to S.C. reporter 1/3/12
