[Cite as Burkes v. Dept. of Transp., 2011-Ohio-2736.]

                                       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




KEITH R. BURKES

       Plaintiff

       v.

DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2010-10360-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Keith R. Burkes, filed this action against defendant, Department
of Transportation (ODOT), contending that the windshield on his vehicle was damaged
as a proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition in a roadway construction area on Interstate 270 in Franklin County. Plaintiff
recalled he was traveling on Interstate 270 on August 3, 2010 at approximately 11:45
p.m., “around the Main St./Reynoldsburg exit” when an “object” struck the windshield on
his vehicle causing a “crack like a spider web.”        Plaintiff submitted a photograph
depicting the damage to the windshield. In his complaint, plaintiff requested damages in
the amount of $378.00, the stated cost of a replacement windshield. Plaintiff was not
required to pay a filing fee.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of any damage-causing “object” on Interstate 270
prior to plaintiff’s property damage occurrence.         Defendant explained plaintiff’s
described incident “puts him at milepost 41.32” on Interstate 270 which is “near a
construction zone (and is) basically a mile from the project limits.” Defendant pointed
out ODOT records show no prior calls or complaints were received regarding roadway
debris at milepost 41.32 on Interstate 270 despite the fact “[t]his section of roadway has
an average daily traffic count between 98,830 to 112,240 vehicles.”              Defendant
suggested that the particular “debris existed in that location for only a relatively short
amount of time before plaintiff’s incident.” Defendant asserted plaintiff failed to offer any
evidence to show the length of time the particular damage-causing debris condition was
on the roadway prior to 11:45 p.m. on August 3, 2010.
       {¶ 3} Furthermore, defendant asserted plaintiff failed to offer any evidence to
establish his property damage was attributable to any conduct on the part of ODOT.
Defendant argued plaintiff did not produce proof to establish his property damage was
the result of negligent roadway maintenance. Defendant noted the ODOT “Franklin
County Manager conduct(s) roadway inspections on all state roadways within the
county on a routine basis, at least one to two times a month.” Apparently, no debris
condition was discovered at or near milepost 41.32 on Interstate 270 the last time that
section of roadway was inspected prior to August 3, 2010. The claim file is devoid of
any inspection record. Defendant did submit a “Maintenance History” for Interstate 270
covering the six-month period preceding plaintiff’s incident. This “Maintenance History”
shows ODOT conducted thirty-two litter pick up operations covering the area around
milepost 41.32 from February 3, 2010 to August 2, 2010, the day before plaintiff’s
damage occurrence. Defendant related “if ODOT personnel had found any debris it
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 debris condition prior to 11:45 p.m. on August 3,
2010.
        {¶ 8} Ordinarily, to recover in a 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 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 damage-causing 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 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.
      {¶ 11} 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 270 where plaintiff’s
damage incident occurred. 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




KEITH R. BURKES

      Plaintiff

      v.

DEPT. OF TRANSPORTATION

      Defendant

      Case No. 2010-10360-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:
Keith R. Burkes                 Jerry Wray, Director
7370 E. Broad Street            Department of Transportation
Blacklick, Ohio 43004           1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
3/2
Filed 3/9/11
Sent to S.C. reporter 5/27/11
