[Cite as Henegar v. Ohio Dept. of Transp., 2011-Ohio-2735.]

                                      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




CHRIS HENEGAR

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-10092-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Chris Henegar, filed this action against defendant, Department of
Transportation (ODOT), contending his 2006 Toyota Corolla was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 275 in Hamilton County. In his complaint, plaintiff provided a
narrative description of his damage incident noting, “[u]pon entering 275 from 5 mile,
approximately 200 feet from 275, I came in contact with a very large deformation such
as a speed bump,” which resulted in body damage to the 2006 Toyota.                     Plaintiff
provided a photograph depicting the particular roadway defect he characterized as a
“speed bump.” The defect depicted is actually a highway blowup spanning the entire
roadway lane surface. Plaintiff recalled his damage incident occurred on July 6, 2010 at
approximately 9:00 p.m. Plaintiff requested damages in the amount of $782.15, the
total cost of replacement parts and related automotive repair expense. The filing fee
was paid.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular highway blowup prior to plaintiff’s July 6,
2010 described occurrence. Defendant located the particular defect “at state milepost
68.76 or county milepost 37.28 on I-275 in Hamilton County” and advised that ODOT
“records indicate no calls or complaints were received regarding the blowup in question
prior to Plaintiff Henegar’s incident.” Defendant related no prior reports of a highway
blowup at milepost 68.76 on Interstate 275 were received despite the fact “[t]his section
of roadway has an average daily traffic count in excess of 59,010 vehicles.” Defendant
asserted plaintiff did not provide any evidence to establish the length of time the blowup
at milepost 68.76 existed prior to 9:00 p.m. on July 6, 2010 and suggested “that the
blowup existed in that location for only a relatively short amount of time before plaintiff’s
incident.” Defendant argued the standard to prevail in highway blowup claims is proof
of notice of the defective condition.
       {¶ 3} Defendant contended plaintiff has not shown his property damage was
attributable to conduct on the part of ODOT personnel. Defendant stated “that I-275
was in good condition at the time and in the general vicinity of plaintiff’s incident.”
Defendant further stated “[a] review of the six-month maintenance history (copy
submitted) for the area in question reveals that one partial depth repair (at milepost
68.80) was conducted on the day of plaintiff’s incident.” Defendant argued plaintiff did
not offer evidence to prove his damage was caused by negligent roadway maintenance.
       {¶ 4} Plaintiff filed a response pointing out the highway blowup was promptly
repaired by ODOT after his incident. According to plaintiff, the fact that the blowup was
repaired in a prompt manner establishes “that the defendant had knowledge of this
liability in some form or another.”     Plaintiff argued that defendant “should be held
responsible for any incidents or damage caused due to their roadways.”
       {¶ 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.            ODOT has the duty
to maintain the roadways free from unreasonable risk of harm to the motoring public.
White v. ODOT (1990), 56 Ohio St. 3d 39, 564 N.E. 2d 462. 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} Generally, in order to prove a breach of a duty to maintain 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. There is no evidence in the instant claim to prove ODOT had
either actual or constructive notice of the defect that damaged plaintiff’s car.
       {¶ 7} However, for plaintiff to prevail in a claim involving damage from a
highway blowup, general notice of the condition by ODOT is sufficient.                Knickel v.
ODOT (1976), 49 Ohio App. 2d 335, 3 O.O. 3d 392, 361 N.E. 2d 555. In Knickel, the
10th District Court of Appeals stated “there is a general foreseeability that blow-ups will
occur and that someone will be injured as the result (and) although there is no way to
predict where, when, or with what magnitude a blow-up will occur, they can be
prevented” at 339. Consequently, ODOT is liable to plaintiff in the instant claim under
the general notice rationale advanced in Knickel. Plaintiff has suffered damages in the
amount of $782.15. The $25.00 filing fee may be reimbursed as compensable costs
pursuant to R.C. 2335.19.       See Bailey v. Ohio Department of Rehabilitation and
Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.


                                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




CHRIS HENEGAR

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-10092-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 plaintiff in the amount of $807.15, which includes the filing fee. Court costs are
assessed against defendant.




                                           DANIEL R. BORCHERT
                                           Deputy Clerk

Entry cc:

Chris Henegar                              Jerry Wray, Director
1054 Clough Pike                           Department of Transportation
Cincinnati, Ohio 45245                     1980 West Broad Street
                                           Columbus, Ohio 43223
RDK/laa
2/16
Filed 3/9/11
Sent to S.C. reporter 5/27/11
