[Cite as Zivsak v. Ohio Dept. of Transp., 2010-Ohio-4218.]

                                       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




RICHARD ZIVSAK

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-01280-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} On January 3, 2010, at approximately 12:30 p.m., plaintiff, Richard Zivsak,
was driving his 2007 Ford Edge, merging onto Interstate 271 South from Interstate 480,
when the vehicle struck “a large pipe or piece of light pole” laying on the roadway
surface. Plaintiff related that both left tires on his vehicle were punctured from striking
the pipe or piece of fallen light pole. Plaintiff implied that the damage to his Ford Edge
was proximately caused by negligence on the part of defendant, Department of
Transportation (ODOT), in failing to maintain the roadway free of hazardous debris
conditions. Consequently, plaintiff filed this complaint seeking to recover $494.14, the
total cost of replacement tires. The filing fee was paid.
        {¶ 2} Defendant conducted an investigation and determined that the damage-
causing incident occurred between state mileposts 27.99 and 28.52 on Interstate 480 in
Cuyahoga County. Defendant asserts that it had no “notice of the subject condition
prior to” the damage-causing incident. Defendant, “believes that the debris existed in
that location for only a relatively short amount of time before plaintiff’s incident.”
Defendant asserted that plaintiff failed to produce any evidence to establish the length
of time the debris condition existed prior to 12:30 p.m. on January 3, 2010. Defendant
also asserted that plaintiff did not offer evidence to show the damage-causing debris
condition was attributable to any conduct on the part of ODOT.
       {¶ 3} Defendant pointed out that defendant’s “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
between mileposts 27.99 and 28.52 on Interstate 480 the last time that specific section
of roadway was inspected prior to January 3, 2010. Defendant reviewed a six-month
maintenance jurisdiction history of the area in question and found seventeen litter
patrols were performed, the last being on November 17, 2009.               Also, defendant’s
records show that nineteen litter pick-ups were performed in the area with the last
occurring on December 24, 2009 and according to defendant, any debris found would
have been picked up.
       {¶ 4} Despite filing a response, plaintiff did not supply any evidence to establish
the length of time that the damage-causing debris condition was on the roadway prior to
his property damage event. Plaintiff pointed out the fact that the replacement tires he
purchased were very expensive. Plaintiff noted “I do not deny any statements” made by
defendant. Plaintiff requested defendant admit liability in this matter.
       {¶ 5} 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. Defendant professed liability cannot be
established when requisite notice of the damage-causing conditions cannot be proven.
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. See Bello v.
City of Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the
syllabus.   Plaintiff has failed to produce sufficient evidence to prove his property
damage was caused by a defective condition created by ODOT.
      {¶ 6} Generally, in order 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 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 indicate the length of
time that the debris condition was present on the roadway prior to the incident forming
the basis of this claim. No evidence has been submitted to show that defendant had
actual notice of the debris. Additionally, 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. 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.




                              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




RICHARD ZIVSAK

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-01280-AD

Clerk Miles C. Durfey


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.



                                                  ________________________________
                                                  MILES C. DURFEY
                                                  Clerk

Entry cc:

Richard Zivsak                                    Jolene M. Molitoris, Director
1016 Shepard Hills                                Department of Transportation
Macedonia, Ohio 44056                             1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
4/7
Filed 5/4/10
Sent to S.C. reporter 9/2/10
