[Cite as Sheeter v. Ohio Dept. of Transp., Dist. 1, 2010-Ohio-2033.]

                                        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




PAUL A. SHEETER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 1

        Defendant

        Case No. 2009-08438-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                           FINDINGS OF FACT
        {¶ 1} On September 10, 2009, plaintiff, Paul A. Sheeter, was traveling east on
US Route 30 “between Van Wert and Delphos” at approximately milemarker 14.0 when
his 2005 Chevrolet Trailblazer struck debris in the roadway causing substantial damage
to the vehicle.         Plaintiff described the damage-causing debris as a “tarp-strap.”
According to plaintiff, the “tarp strap” punctured and became embedded in the back right
tire of his vehicle and by the time he could safely pull over to the roadway berm the
embedded “tarp strap” had damaged the “passenger tail-light, scratched and dented the
passenger rear door, the passenger rear quarter panel, the rear bumper wrap-around,
and the edges of the rear (passenger) wheel-well on my 2005 Chevrolet Trailblazer.”
Plaintiff asserted the damage to his vehicle 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. Plaintiff filed this complaint seeking to
recover damages in the amount of $1,118.04, the stated cost of repairs to his 2005
Chevrolet Trailblazer. The filing fee was paid.
      {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular debris condition on the roadway prior to
August 14, 2009. Defendant’s records show that no calls or complaints were received
regarding debris on the specific roadway area which ODOT located at “milepost 14.0 on
US 30 in Van Wert County.”       Defendant suggested that “the debris existed in that
location for only a relatively short amount of time before plaintiff’s incident.” Defendant
contended that plaintiff did not produce any evidence to establish the length of time that
the damage-causing debris existed on the roadway prior to August 14, 2009.
      {¶ 3} Defendant expressed the opinion that the damage-causing object was
deposited on the roadway by an unidentified third party. Therefore, defendant argued
that ODOT generally cannot be held liable for the acts of an unknown third party
motorist. Furthermore, defendant asserted that plaintiff failed to offer any evidence his
damage was caused by any conduct attributable to ODOT personnel.                Defendant
explained that the ODOT “Van Wert 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 at milepost 14.0 on US Route 30 the last
time that section of roadway was inspected prior to August 14, 2009. Defendant related
that ODOT conducts frequent litter patrols on US Route 30 noting “litter patrols were
performed on US 30 and (ODOT crews) had been there nine days before plaintiff’s
incident.” Defendant stated that “if ODOT personnel had found any debris it would have
been picked-up.” Defendant contended plaintiff failed to prove his property damage
was caused by ODOT breaching any duty of care owed to the traveling public.
                                CONCLUSIONS OF LAW
      {¶ 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. This court, as the 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.
      {¶ 6} To prove a breach of the duty by defendant to maintain the highways,
plaintiff must establish, by a preponderance of the evidence, ODOT 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. There is no evidence to prove that
defendant had actual notice of the debris. Additionally, there is no evidence to establish
that defendant had constructive notice of the debris.        Plaintiff has not produced
evidence to indicate the length of time that the damage-causing object was on the
roadway prior to the incident forming the basis of this claim.       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.
      {¶ 8} “[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. Plaintiff, in the instant claim, has failed
to prove that defendant had any notice of the damage-causing object prior to his
incident.
       {¶ 9} Evidence in the instant action tends to show that plaintiff’s damage was
caused by an act of an unidentified third party, not ODOT.        Defendant has denied
liability based on the particular premise that it had no duty to control the conduct of a
third person except in cases where a special relationship exists between defendant and
either plaintiff or the person whose conducts needs to be controlled. Federal Steel &
Wire Corp. v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However,
defendant may still bear liability if it can be established if some act or omission on the
part of ODOT was the proximate cause of plaintiff’s injury. Plaintiff has failed to prove,
by a preponderance of the evidence, that defendant failed to discharge a duty owed to
him or that his injury was proximately caused by defendant’s negligence. Plaintiff failed
to show that the damage-causing object was connected to any conduct under the
control of defendant, or 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.
Plaintiff has not submitted conclusive evidence to prove a negligence act or omission on
the part of defendant caused the damage to his vehicle. Hall v. Ohio Department of
Transportation (2000), 99-12863-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




PAUL A. SHEETER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 1

        Defendant

        Case No. 2009-08438-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:

Paul A. Sheeter                                  Jolene M. Molitoris, Director
227 W. Clime Street                              Department of Transportation
Lot #33                                          1980 West Broad Street
Delphos, Ohio 45833                              Columbus, Ohio 43223

RDK/laa
1/11
Filed 1/27/10
Sent to S.C. reporter 5/7/10
