[Cite as Branstutter v. Ohio Dept. of Transp., 2010-Ohio-2032.]

                                       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




JOSEPH BRANSTUTTER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2009-08322-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Joseph Branstutter, asserted the tire on his Chevrolet Corvette
was damaged when the vehicle struck “a large piece of tire on a long piece of metal”
while traveling south on Interstate 75 in West Chester, Ohio.                   Plaintiff recalled the
damage incident occurred on September 11, 2009 at approximately 10:30 a.m.
        {¶ 2} Plaintiff contended the damage to his car was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in failing to
maintain the highway free of hazardous debris.                    Consequently, plaintiff filed this
complaint seeking to recover $150.00, the stated cost of a replacement tire and related
repair expense. The filing fee was paid.
        {¶ 3} Defendant conducted an investigation and determined the damage-
causing incident occurred between state mileposts 21.23 and 17.47 on Interstate 75 in
Butler 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 plaintiff failed to produce any evidence to establish the length of time the
debris condition existed prior to 10:30 a.m. on September 11, 2009. Defendant also
asserted plaintiff did not offer evidence to show the damage-causing debris condition
was attributable to any conduct on the part of ODOT.
      {¶ 4} Defendant pointed out that ODOT’s “Butler 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
21.23 and 17.47 on Interstate 75 the last time that specific section of roadway was
inspected prior to September 11, 2009. Defendant reviewed a six-month maintenance
history of the area in question and found twenty-seven litter patrols were performed, the
last being on September 11, 2009, the day of plaintiff’s incident, and according to
defendant any debris found would have been picked up.
      {¶ 5} Despite filing a response, plaintiff did not supply any evidence to establish
the length of time the damage-causing debris condition was on the roadway prior to his
property damage event. Plaintiff pointed out the location of the debris condition was on
“I-75 South between 21/8 and 21/6 mile markers in West Chester, Oh.”             Plaintiff
submitted a copy of an invoice for $150.76, the complete cost he incurred for a
replacement tire.
      {¶ 6} 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 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.
      {¶ 7} Generally, in order to recover in any suit involving injury proximately
caused by roadway conditions including debris, plaintiff must prove 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 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 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 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 defendant had constructive
notice of the debris. Plaintiff has not produced any evidence to infer 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
JOSEPH BRANSTUTTER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2009-08322-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:

Joseph Branstutter                                Jolene M. Molitoris, Director
843 N. University Blvd. #3                        Department of Transportation
Middletown, Ohio 45042                            1980 West Broad Street
                                                  Columbus, Ohio 43223

RDK/laa
1/6
Filed 1/22/10
Sent to S.C. reporter 5/7/10
