[Cite as Hamad v. Dept. of Transp., 2010-Ohio-6647.]

                                      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




MAHMOUD HAMAD

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-06753-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Mahmoud Hamad, filed this action against defendant, Department
of Transportation (ODOT), contending his 2003 Dodge Caravan SE was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 71 South in Cuyahoga County. Specifically, plaintiff related his
van was damaged when the vehicle ran over a tire laying on the traveled portion of
Interstate 71 “between the 130th and 150th exit” in Cleveland. Plaintiff recalled the
damage incident occurred on March 10, 2010 at approximately 1:30 p.m.                 Plaintiff
submitted a repair invoice for his van dated April 24, 2010 in the amount of $1,923.88.
Plaintiff requested damage recovery in that amount. The filing fee was paid.
        {¶ 2} Defendant conducted an investigation and determined that the damage-
causing incident occurred between state mileposts 240.5 and 241.8 on Interstate 71 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 1:30 p.m. on March 10, 2010. Defendant
also asserted that plaintiff did not offer any 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 240.5 and 241.8 on Interstate 71 the last time that specific section of
roadway was inspected prior to March 10, 2010.           Defendant reviewed a six-month
maintenance jurisdiction history of the area in question and found thirty-five litter patrols
were performed, the last being on March 5, 2010. Also, defendant’s records show that
eight litter pick-ups were performed in the area with the last occurring on March 2, 2010
and according to defendant, any debris found would have been picked up.
       {¶ 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.
       {¶ 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} 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.
        {¶ 7} Defendant professed liability cannot be established when requisite notice
of the damage-causing conditions cannot be proven. Generally, defendant is only liable
for roadway conditions of which it has notice, but fails to correct. Bussard. However,
proof of notice of a dangerous condition is not necessary when defendant’s own agents
actively caused such condition. See 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. Plaintiff has failed to produce any evidence to prove
that his property damage was caused by a defective condition created by ODOT or that
defendant knew about the particular tire debris condition prior to 1:30 p.m. on March 10,
2010.
        {¶ 8} Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions including tire debris, 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 as evidence to
establish negligent maintenance.
        {¶ 9} “[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.
      {¶ 10} Plaintiff has not produced any evidence to indicate the length of time that
the tire 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 tire 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 tire
debris on the roadway.
      {¶ 11} Evidence in the instant action is conclusive to show that plaintiff’s damage
was caused by an act of an unidentified third party. 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. See 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 the part of ODOT was the proximate cause of plaintiff’s injury. 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.
      {¶ 12} “If an injury is the natural and probable consequence of 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 the 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.
      {¶ 13} 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.
Defendant submitted evidence show that ODOT personnel were periodically performing
work activities on the particular section of Interstate 71 where plaintiff’s damage incident
occurred.   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




MAHMOUD HAMAD

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant

       Case No. 2010-06753-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:

Mahmoud Hamad                                   Jolene M. Molitoris, Director
9910 Nicholas Avenue                            Department of Transportation
Cleveland, Ohio 44102                           1980 West Broad Street
                                                Columbus, Ohio 43223
RDK/laa
9/29
Filed 10/15/10
Sent to S.C. reporter 2/2/11
