[Cite as Jessop v. Ohio Dept. of Transp., 2011-Ohio-3964.]



                                      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




DEVIN HEATH JESSOP

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-12958-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Devin Jessop, filed this action against defendant, Department of
Transportation (ODOT), contending his 2000 Oldsmobile Alero was damaged as a
proximate result of negligence on the part of ODOT in maintaining a hazardous
condition on State Route 95 (SR 95).                   Specifically, plaintiff claimed his car was
damaged when he “hit a tree that was hanging across 95.” In his complaint, plaintiff
requested damage recovery in the amount of $2,330.17, the total cost of replacement
parts and related repair expense. The filing fee was paid.
        {¶ 2} Defendant conducted an investigation and determined the incident occurred
on November 26, 2010, “between milepost 9.25 in Richland County and milepost 1.08 in
Ashland County.” Defendant asserted “ODOT did not receive any reports of the tree
limb or have any knowledge of the tree limb prior to the incident.”                         Defendant
suggested, “it is likely the tree limb existed for only a short time before the incident.”
Defendant pointed out plaintiff did not offer any evidence to establish the length of time
the fallen tree limb was across the roadway prior to his November 26, 2010 damage
occurrence.
      {¶ 3} Defendant contended plaintiff did not produce any evidence to prove his
property damage was proximately caused by negligent maintenance.             Defendant
advised the ODOT “Richland County Manager inspects all state roadways within the
county at least two times a month.” Apparently, no problem with a fallen tree limb was
discovered the last time SR 95 between mileposts 9.25 and 1.08 was inspected prior to
November 26, 2010. The claim file is devoid of any inspection record. Defendant did
submit a copy of “Maintenance Records” covering the period from May 1, 2010 to
November 26, 2010, which addressed maintenance work performed on SR 95 by
ODOT personnel. On November 22, 2010, ODOT crews conducted maintenance of
shrubs, plants, and trees along the roadway at milepost 10.40. Apparently, no downed
tree limb was discovered in the area when the work was performed on that date. On
November 24, 2010, ODOT personnel conducted litter pickup from milepost 0.00 to
milepost 11.26 on SR 95 and defendant asserted “the crew would not have left debris in
the roadway.”
      {¶ 4} Plaintiff did not file a response. Plaintiff did not provide any evidence to
establish the length of time the fallen tree limb was across on SR 95 prior to his
November 26, 2010 incident.
      {¶ 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.
      {¶ 6} 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
       {¶ 7} 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.
       {¶ 8} 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.
       {¶ 9} Ordinarily, to recover in a suit involving injury proximately caused by
roadway conditions including fallen tree limbs, 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 or
evidence to establish negligent maintenance.
       {¶ 10} “[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 fact of each case not
simply by applying a pre-set time standard for the discovery of certain road hazards.”
Bussard, at
       {¶ 11} 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.
       {¶ 12} Plaintiff has not produced any evidence to indicate the length of time that
the tree limb 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 fallen tree limb
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 fallen tree limb on the roadway.
       {¶ 13} Plaintiff, as a matter of law, in order to prevail, must present evidence with
regard to the condition of the tree and the trier of fact is precluded from making any
inference of prior notice unless such evidence is submitted. See Shupe v. Ohio Dept. of
Transp., Ct. of Cl. No. 2003-04457-AD, 2004-Ohio-644; Blausey v. Ohio Dept. of
Transp., Ct. of Cl. No. 91-13003, 2005-Ohio-1807; Varns v. Ohio Dept. of Transp., Dist.
5 (2006), Ct. of Cl. No. 2006-05233-AD; Campbell v. Ohio Dept. of Transp., Ct. of Cl.
No. 2008-01120-AD, 2008-Ohio-5777; Miller v. Ohio Dept. of Transp., Ct. of Cl. No.
2008-03971-AD, 2008-Ohio-5912.        Plaintiff, in the instant claim, has failed to prove
defendant had requisite notice of the fallen tree.
       {¶ 14} 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
tree limb to be in the roadway. Herlihy v. Ohio Department of Transportation (1999),
99-07011-AD. Plaintiff has failed to provide sufficient evidence to prove that defendant
maintained a hazardous condition on the roadway which was the substantial or sole
cause of his property damage. 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




DEVIN HEATH JESSOP

          Plaintiff

          v.

DEPARTMENT OF TRANSPORTATION

          Defendant

          Case No. 2010-12958-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:

Devin Heath Jessop                                 Jerry Wray, Director
2601 A County Road 1075                            Department of Transportation
Perrysville, Ohio 44864                            1980 West Broad Street
                                                   Columbus, Ohio 43223
SJM/laa
4/15
Filed 4/27/11
Sent to S.C. reporter 8/10/11
