[Cite as Wargo v. Dept. of Transp., 2011-Ohio-6893.]




                                      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

BRITTANY R. WARGO

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2011-05394-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, Brittany Wargo, filed this action against defendant, Ohio
Department of Transportation (ODOT), contending her vehicle was damaged as a
proximate result of negligence on the part of ODOT in maintaining a hazardous
condition on State Route 7. Plaintiff described her damage incident occurred in the
following manner, “I was driving south bound on State Route 7 when I struck something
in the middle of the road.             The officer at the scene observed a large (boulder)
underneath my vehicle.” Plaintiff’s damage event occurred on February 25, 2011, at
approximately 10:55 p.m. In her complaint, plaintiff requested damages in the amount
of $2,400.00, for replacement parts and related expense associated with having her car
repaired. The $25.00 filing fee was paid.
        {¶2}    Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the damage-causing debris condition prior to plaintiff’s
incident. Defendant located the debris near milepost 5.50 on SR 7 in Jefferson County
and advised ODOT did not receive any calls or complaints for debris at that location.
Defendant pointed out the particular “section of roadway has an average daily traffic
count between 11,260 and 17,210 vehicles.”        Defendant asserted plaintiff failed to
establish the length of time the debris existed on the roadway prior to her property-
damage event. Defendant suggested, “that the rock was in that location for only a short
amount of time before the incident.”
      {¶3}   Defendant contended plaintiff failed to establish the damage-causing
debris condition was attributable to any conduct on the part of ODOT. Defendant did
submit a six-month maintenance history of the specific roadway area in question which
recorded eight maintenance operations were performed in the southbound direction of
SR 7 during the time frame covered. According to the submitted maintenance history,
the last time ODOT personnel were working in the area was on February 16, 2011,
when employees were performing channel cleaning. Defendant concluded that, if
“ODOT personnel had detected any defects or possible rock slides, they would have
been promptly scheduled for repair.”       Defendant argued plaintiff failed to produce
evidence to show her property damage was proximately caused by negligent
maintenance on the part of ODOT.
      {¶4}   Plaintiff did not file a response.
      {¶5}   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.
      {¶6}   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.
      {¶7}    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.
      {¶8}    Defendant professed liability cannot be established when requisite notice
of the damage-causing conditions cannot be proven. 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 her property damage
was caused by a defective condition created by ODOT or that defendant knew about
the particular debris condition prior to 10:55 p.m. on February 25, 2011.
      {¶9}    Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions including debris, plaintiff must prove 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 as 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 or evidence to
establish negligent maintenance.
      {¶10} “[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, 47 O.O. 231, 105 N.E. 2d 429. “A finding of
constructive notice is a determination the court must make on the fact 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.
         {¶11} Plaintiff has not produced any evidence to indicate the length of time that
the boulder was present on the roadway prior to the incident forming the basis of this
claim.    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 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 debris on the roadway.
         {¶12} 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 or conditions. Herlihy v. Ohio Department of Transportation (1999), 99-07011-
AD.
         {¶13} Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to plaintiff, or that plaintiff’s injury was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing object at the time of the damage incident was connected to any conduct under
the control of defendant or any negligence on the part of defendant proximately caused
the damage. Herman v. Ohio Dept. of Transp. (2006), 2006-05730-AD; Husak v. Ohio
Dept. of Transp., Ct. of Cl. No. 2008-03963-AD, 2008-Ohio-5179.
                                 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
BRITTANY R. WARGO

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant


Case No. 2011-05394-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:
Brittany R. Wargo                                 Jerry Wray, Director
59 Findley Street                                 Department of Transportation
Dillonvale, Ohio 43017                            1980 West Broad Street
                                                  Columbus, Ohio 43223
8/1
Filed 8/10/11
Sent to S.C. reporter 1/3/12
