[Cite as Ireland v. Ohio Dept. of Transp., 2010-Ohio-6193.]

                                       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




CHARLOTTE E. IRELAND

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-02677-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Charlotte E. Ireland, filed this action against defendant,
Department of Transportation (ODOT), contending that her 2006 Hyundai Sonata was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on US Route 35 in Fayette County. Plaintiff related that, “we were
driving towards Dayton on US 35 by Jefferson Mall making a lane change” when her
vehicle struck an uprooted road reflector; an act which caused the reflector to be
propelled into the right front and rear doors of plaintiff’s vehicle. Plaintiff recalled that
the damage incident occurred on January 30, 2010 at approximately 4:07 p.m. Plaintiff
submitted photographs depicting the body damage to her vehicle caused by the road
reflector. Additionally, plaintiff submitted a photograph showing the damage-causing
reflector, which appears to be largely intact. Plaintiff requested damage recovery in an
amount of $1,327.72, representing the cost of automotive repair and rental expenses.
The filing fee was paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of a loose reflector on US Route 35 prior to
plaintiff’s property damage occurrence.         Defendant denied receiving any calls or
complaints from any entity regarding a loose road reflector “prior to the plaintiff’s
incident.” Defendant argued that plaintiff failed to produce any evidence to establish the
length of time that the reflector was dislodged from the roadway prior to her January 30,
2010 damage event.        Defendant explained that the location of the reflector would
correspond to “between mileposts 4.37 and 3.66 on US 35 in Fayette County.”
Defendant suggested that, “the debris (reflector) existed in that location for only a
relatively short amount of time before plaintiff’s incident.”
       {¶ 3} Defendant contended that plaintiff did not offer evidence to prove her
property damage was attributable to conduct on the part of ODOT personnel.
Defendant acknowledged that the roadway between mileposts 4.37 and 3.66 was
regularly maintained and submitted a “Maintenance History” showing the last time that
an ODOT work force was in the area prior to January 30, 2010 was on September 17,
2009 when pothole patching was conducted.              Defendant advised that the ODOT
“Fayette 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 loose
road reflectors were discovered between mileposts 4.37 and 3.66 on US Route 35 the
last time that section of roadway was inspected prior to January 30, 2010. The claim
file is devoid of any inspection record. The claim file is devoid of any record of snow
removal operations conducted by ODOT on US Route 35. Defendant asserted that, “[i]f
there was a noticeable defect with any raised or loosened pavement marker, it would
have immediately been repaired.”
       {¶ 4} 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. 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.
      {¶ 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. Additionally, defendant has the duty to exercise
reasonable care for the motoring public when conducting snow removal operations.
Andrews v. Ohio Department of Transportation (1998), 97-07277-AD.
      {¶ 6} Ordinarily in a claim involving roadway defects, plaintiff must prove that
either: 1) defendant had actual or constructive notice of the defective 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. There is no proof that defendant had actual
notice or constructive notice of the raised pavement marker.
      {¶ 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.     However, proof of notice of a dangerous condition is not
necessary when defendant’s own agents actively cause such condition. 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. No evidence has been
submitted to prove that the damage-causing pavement marker was originally dislodged
from the roadway by defendant’s personnel.
      {¶ 8} “If any 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 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.
       {¶ 9} Plaintiff has not shown, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to her or that her property damage was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing reflector was connected to any conduct under the control of defendant, or that
there was any 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.
       {¶ 10} Finally, 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.
Therefore, defendant is not liable for any damage that plaintiff may have suffered from
the dislodged reflector.




                                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




CHARLOTTE E. IRELAND

       Plaintiff
        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-02677-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:

Charlotte E. Ireland                             Jolene M. Molitoris, Director
104 Maple Drive                                  Department of Transportation
Wellston, Ohio 45692                             1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
laa
Filed 8/17/10
Sent to S.C. reporter 12/10/10
