[Cite as Lance v. Ohio Dept. of Transp., Dist. 1, 2010-Ohio-6661.]

                                       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




RONALD E. LANCE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 1

        Defendant

        Case No. 2010-05846-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Ronald E. Lance, filed this action against defendant, Department
of Transportation (ODOT), contending that the tire on his vehicle was damaged as a
proximate cause of negligence on the part of ODOT personnel in maintaining a
hazardous condition on State Route 568 in Hancock County.                  Specifically, plaintiff
claimed that the left rear tire on his vehicle was punctured at approximately 5:00 p.m. on
March 22, 2010, by a dislodged road reflector “about half a mile past Co. Rd. 7 on a
curve.” Plaintiff requested damage recovery in the amount of $176.79, the cost of a
replacement tire. The $25.00 filing fee was paid and plaintiff requested reimbursement
of that cost along with his damage claim.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of a loose or defective reflector on the roadway
prior to plaintiff’s March 22, 2010 property damage occurrence.               Defendant denied
receiving any calls or complaints from any entity regarding a loose reflector on the
roadway, which ODOT located “at milepost 6.0 on SR 568 in Hancock County.”
Defendant asserted that plaintiff did not produce any evidence to establish the length of
time that the loose reflector was on the roadway prior to 5:00 p.m. on March 22, 2010.
Defendant suggested that the particular reflector, “existed in that location for only a
relatively short amount of time before plaintiff’s incident.”
       {¶ 3} Defendant contended that plaintiff did not offer evidence to prove his
property damage was proximately caused by any conduct attributable to ODOT
personnel. Defendant explained that ODOT conducted various maintenance operations
on this particular section of State Route 568 during the six-month period preceding
March 22, 2010.       Defendant’s records (copies submitted) also show that ODOT
conducted a litter patrol at milepost 6.0 on March 22, 2010, the day of plaintiff’s incident.
Apparently, ODOT personnel did not discovery any problems with any reflectors on
State Route 568 on March 22, 2010 when litter patrols were in operation. Defendant
stated that, “if there was a noticeable defect with any raised or loosened pavement
markers it would have immediately been repaired.” Defendant argued that it did not
believe ODOT breached any duty of care owed to the motoring public in regard to
roadway maintenance.
       {¶ 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 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 highway 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.     However, proof of     notice 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; 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
loosened reflector prior to March 22, 2010.
      {¶ 7} Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions including loosened reflectors, plaintiff must prove that either: 1)
defendant had actual or constructive notice of the reflector 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), 750287-AD. Plaintiff has not provided any evidence to prove
that ODOT had actual notice of the loosened reflector condition. Therefore, in order to
recover plaintiff must offer proof of defendant’s constructive notice of the condition as
evidence to establish negligent maintenance.
      {¶ 8} “[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.
      {¶ 9} Plaintiff has not produced any evidence to indicate the length of time that
the loosened road reflector 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 any
problem with the reflector. 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 that the loosened reflector 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 a defective road reflector.
      {¶ 10} Additionally, 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. 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 vehicle.             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




RONALD E. LANCE

      Plaintiff

      v.
OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 1

        Defendant

         Case No. 2010-05846-AD

Clerk Miles C. Durfey


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.



                                                  ________________________________
                                                  MILES C. DURFEY
                                                  Clerk

Entry cc:

Ronald E. Lance                                   Jolene M. Molitoris, Director
247 E. Main Street                                Department of Transportation
McComb, Ohio 45858                                1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
8/30
Filed 11/2/10
Sent to S.C. reporter 2/11/11
