[Cite as Pytlak v. Ohio Dept. of Transp., 2010-Ohio-2179.]

                                       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




MARION PYTLAK

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2008-09279-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Marion Pytlak, filed this action against defendant, Department of
Transportation (ODOT), alleging his building, located adjacent to State Route 149 in
Neffs, Ohio, received water damage from passing traffic after ODOT installed a
drainage grate approximately fifty inches from the front entrance to the building. Plaintiff
related that “when it rains or wet snow, cars and trucks splash my building” and
consequently inhibit his “chances for renting” the property.       Plaintiff filed this claim
seeking to recover damages of $2,500.00, apparently representing lost rental
opportunity he has suffered due to precipitation being splashed onto the front entrance
of his rental property. Plaintiff did not offer any evidence to prove he has lost rental
opportunities due to roadway traffic propelling fallen precipitation onto his building. The
filing fee was paid.
        {¶ 2} Defendant explained ODOT installed a drainage grate near plaintiff’s
property incident to construction of a bridge on State Route 149 in 1991. According to
defendant, “plaintiff’s rental property is 10 feet from the edge of the pavement of SR
149,” which corresponds to milepost 5.40 on State Route 149 in Belmont County and is
located within ODOT’s right-of-way.      It also appears the drainage grate defendant
installed was located within the ODOT right-of-way. Defendant asserted the grate was
installed “to minimize surface run-off from the roadway being deposited into” plaintiff’s
building. On or about June 23, 2008, plaintiff sent a letter to defendant complaining of
water damage due to recent construction of a bridge. ODOT Belmont County Manager,
Dave Schafer, on or about July 17, 2008, responded to the complaint by conducting an
onsite inspection of plaintiff’s premises as well as the drainage grate installed adjacent
to State Route 149.
       {¶ 3} Defendant submitted an affidavit from Dave Schafer referencing his
findings incident to his July 2008 inspection of the property in question. Schafer initially
reported he observed plaintiff’s property “was very close to the street, approximately 10
feet.” Schafer related he inspected both the roadway around plaintiff’s property as well
as the drainage grate; “finding no structural or maintenance problems” with the roadway
and did not notice any “clogging or blocking of the catch basin.” Schafer reported both
the drainage grate and catch basin functioned properly.          Upon further inspection,
Schafer noted “I found that when checking the catch basin, the [p]laintiff had connected
downspout plumbing from his property.”
       {¶ 4} Defendant denied the “splashing” water damage plaintiff complained about
was “due to the structure or maintenance of the roadway.”             Although defendant
acknowledged ODOT has a duty to repair and maintain state roadways, the contention
was forwarded that ODOT has no duty to prevent or inhibit “splashing” of naturally
occurring water that emanates from traffic traveling on the roadway adjacent to plaintiff’s
property.   Defendant contended plaintiff has failed to produce evidence that any
damage to his property was proximately caused by any conduct attributable to ODOT.
Defendant submitted a copy of an e-mail from Dave Schafer, who indicated he and
ODOT personnel went to the location of plaintiff’s building on July 14, 2008 and
“cleaned out the catch basin, cleaned out the culvert pipe and ensured that drainage
was running properly from this structure.” Schafer also indicated the downspout that
ran from plaintiff’s building to the ODOT catch basin was “partially clogged.” Defendant
submitted photographs depicting plaintiff’s building, State Route 149, and the proximity
of the drainage grate/catch basin to plaintiff’s building. Both the drainage grate/cath
basin and the front of plaintiff’s building appear to be located on the ODOT right-of-way.
Defendant argued plaintiff did not offer any evidence to establish ODOT acted
negligently in regard to maintenance of the catch basin in front of his building.
       {¶ 5} Plaintiff filed a response reasserting that heavy vehicle traffic such as coal
trucks and tractor trailer trucks propel precipitation from State Route 149 onto the front
of his building. Plaintiff pointed out the particular section of State Route 149 “is straight,
half mile long (with) no red lights, no police, (and) no speed limit.” Plaintiff seemingly
expressed the opinion that the fact precipitation remains on the roadway for traffic to
“splash” on his building is directly attributable to the location of the drainage grate/catch
basin. Plaintiff has not offered any evidence to substantiate this expressed opinion.
Plaintiff suggested the roadway drainage in front of his building is not running properly.
Plaintiff did not provide any evidence other than his own assertion to prove the drainage
installed by defendant is not functioning as intended.
       {¶ 6} In order for plaintiff to prevail upon his claim of negligence, plaintiff 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. A
breach of duty can be found only if defendant’s interference with drainage water flow is
unreasonable, which is determined “by balancing the gravity of the harm caused by the
interference against the utility of the [defendant’s] conduct.”       McGlashan v. Spade
Rockledge Terrace Condo Dev. Corp. (1980), 62 Ohio St. 2d 55, at 60, 16 O.O. 3d 41,
402 N.E. 2d 1196, adopting 4 Restatement on Torts 2d (1979), 146, Section 833.
       {¶ 7} Defendant must exercise due diligence in the maintenance and repair of
the highways. Hennessy v. State of Ohio Highway Department (1985), 85-02071-AD.
This duty encompasses a duty to exercise reasonable care in conducting its roadside
maintenance activities to protect property from the hazards arising out of these
activities. Rush v. Ohio Dept. of Transportation (1992), 91-07526-AD; Phillips v. Dept.
of Transp., Ct. of Cl. No. 2008-10374-AD, 2009-Ohio-5106. Reasonable or ordinary
care is that degree of caution and foresight which an ordinarily prudent person would
employ in similar circumstances. Smith v. United Properties, Inc. (1965), 2 Ohio St. 2d
310, 31 O.O. 2d 573, 209 N.E. 2d 142.
       {¶ 8} 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. Plaintiff
claimed his damage event was proximately caused by a failure to inspect and maintain
roadway draining system on State Route 149. As a necessary element of this type of
claim, plaintiff was required to prove proximate cause of his damage by a
preponderance of the evidence. See, e.g. Stinson v. England 69 Ohio St. 3d 451, 1994-
Ohio-35, 633 N.E. 2d 532.        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.
      {¶ 9} “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.    In the instant claim, plaintiff has failed to offer evidence to show that
defendant’s drainage system was improperly maintained or inadequately inspected.
Plaintiff has failed to prove he suffered any damage as a proximate cause of a drainage
system failure.
      {¶ 10} Furthermore, plaintiff has not established defendant maintained a
nuisance by locating the drainage system in the proximity of the building adjacent to
State Route 149. To constitute a nuisance, the thing or act complained of must either
cause injury to the property of another, obstruct the reasonable use or enjoyment of
such property, or cause physical discomfort to such person. Dorrow v. Kendrick (1987),
30 Ohio Misc. 2d 40, 30 OBR 481, 508 N.E. 2d 684. “[A] civil action based upon the
maintenance of a qualified nuisance is essentially an action in tort for the negligent
maintenance of a condition, which, of itself, creates an unreasonable risk of harm,
ultimately resulting in injury. The dangerous condition constitutes the nuisance. The
action for damages is predicated upon carelessly or negligently allowing such condition
to exist.” Rothfuss v. Hamilton Masonic Temple Co. (1973), 34 Ohio St. 2d 176, 180, 63
O.O. 2d 270, 297 N.E. 2d 105.         Plaintiff failed to prove defendant maintained a
nuisance.
      {¶ 11} Additionally, in order to establish liability based on a theory of negligent
design of the drainage system, plaintiff is required to produce expert testimony
regarding the issue of causation and that testimony must be expressed in terms of
probability. Stinson, at 454. Plaintiff, by not supplying the requisite expert testimony to
state a prima facie claim involving design/location of the drainage system has failed to
meet his burden of proof in regard to liability. See Ryan v. Ohio Dept. of Transp., Ct. of
Cl. No. 2003-09297-AD, 2004-Ohio-900; Ringel v. Ohio Dept. of Transp., Ct. of Cl. No.
2006-02081-AD, 2006-Ohio-7279.         Plaintiff has failed to prove ODOT’s drainage
maintenance proximately caused any damage to his property. See Wasilewski v. Ohio
Dept. of Transp., Ct. of Cl. No. 2004-03560-AD, 2004-Ohio-7326.




                               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




MARION PYTLAK

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION
        Defendant

         Case No. 2008-09279-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:

Marion Pytlak                                     Jolene M. Molitoris, Director
113 Hutchison Drive                               Department of Transportation
St. Clairsville, Ohio 43950                       1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
1/28
Filed 2/18/10
Sent to S.C. reporter 5/14/10
