[Cite as Rebol v. Ohio Dept. of Transp., 2011-Ohio-7068.]



                                       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




ANTHONY REBOL

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2011-09870-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Anthony Rebol, asserted that he suffered property damage to his
automobile on June 9, 2011, while traveling on I-77 northbound in Cleveland “due to
water running across the road.”               Specifically, plaintiff maintained that his car was
damaged when he drove through a liquid substance that was sprayed into the air by
other cars. Plaintiff related that “[w]hat I thought to be a spray with road dirt turn out to
be tar.” Plaintiff claimed that the tar could not be washed off and that he hired two
persons to hand rub the substance from his car.
        {¶2}     Plaintiff contended that defendant, Department of Transportation (“DOT”),
should bear liability for his property damage caused by the tar. Therefore, plaintiff filed
this complaint seeking to recover $126.37, an amount representing the cost of tar
removal products, labor, car wash fees, photographs of the damage, and replacement
wiper blades. Plaintiff submitted photographs depicting the damage to his car. The
photographs show a black, speckled tar-like substance splattered across the front
bumper, side panels and wheels of the car. The filing fee was paid.
        {¶3}     Defendant located plaintiff’s event between mile markers 161.48 and
163.10 in Cuyahoga County. Defendant denied liability in this matter and maintained
that DOT was unaware of any problems with roadway pavement conditions on
Interstate 77 prior to plaintiff's stated incident. Despite the fact that over 68,000 vehicles
normally travel on the particular portion of I-77 in the course of a day, defendant denied
receiving any complaints concerning standing water or tar on the roadway on June 9,
2011. Defendant suggested, “that the tar existed in that location for only a relatively
short amount of time before plaintiff’s incident.” Defendant asserted plaintiff failed to
establish the length of time the tar existed on the roadway prior to his property damage
event.
          {¶4}   Defendant related the ODOT “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 tar was discovered in the vicinity of plaintiff’s
incident on I-77 the last time that section of roadway was inspected before June 9,
2011. Defendant did submit a six-month maintenance history of the specific roadway
area in question which recorded 260 maintenance operations were performed in the
relevant area of I-77 during the time frame covered.           Defendant stated “if ODOT
personnel had detected any defects they would have been promptly scheduled for
repair.” Defendant argued plaintiff failed to produce evidence to show his property
damage was proximately caused by negligent maintenance on the part of ODOT.
          {¶5}   Plaintiff filed a response asserting that he notified ODOT employee Ed
Bais after the event occurred. Plaintiff explained that he did not see workers or ODOT
vehicles in the area, he merely observed what appeared to be water “flowing onto I-77
in the Slavic Village area, cars slowing down and spraying cars behind them, of which
my car was one which was sprayed with tar. I have no idea how the water or tar got
there.”
          {¶6}   Generally, defendant is only liable for roadway conditions of which it has
notice, but fails to correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31
OBR 64, 507 N.E.2d 1179. Plaintiff, however, has not produced sufficient evidence to
show his damage was proximately caused by roadway repavement activities.
          {¶7}   Defendant has the duty to maintain its highway in a reasonably safe
condition for the motoring public. Knickel v. Ohio Department of Transportation (1976),
49 Ohio App. 2d 335, 361 N.E.2d 486. However, defendant is not an insurer of the
safety of its highway. 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}    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.
       {¶9}    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.
       {¶10} Defendant professed liability cannot be established when requisite notice
of the damage-causing conditions cannot be proven. 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 tar condition prior to the evening of June 9, 2011.
       {¶11} Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions, plaintiff must prove that either:     1) defendant had actual or
constructive notice of the 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.
      {¶12} “[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, 47 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 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.
      {¶13} Plaintiff has suggested in his response that the tar was present on the
roadway no more than one to two hours before his car was damaged. 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 defective condition 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 tar on the
roadway.
      {¶14} 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 or conditions. Herlihy v. Ohio Department of Transportation (1999), 99-07011-
AD.
      {¶15} Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to plaintiff, or that plaintiff’s injury was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing substance at the time of the damage incident was connected to any conduct
under the control of defendant or any negligence on the part of defendant proximately
caused the damage. Herman v. Ohio Dept. of Transp. (2006), 2006-05730-AD; Husak
v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-03963-AD, 2008-Ohio-5179.
                                 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




ANTHONY REBOL

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-09870-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:

Anthony Rebol                                     Jerry Wray, Director
21101 Nicholas Avenue                             Department of Transportation
Euclid, Ohio 44123                                1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
11/3
Filed 11/9/11
Sent to S.C. reporter 4/5/12
