[Cite as Bedel v. Ohio Dept. of Transp., 2011-Ohio-5530.]



                                       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




JENNIFER BEDEL,                                             Case No. 2011-03260-AD

       Plaintiff,

       v.                                                   Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

       Defendant.                                           MEMORANDUM DECISION



        {¶ 1} On December 22, 2010, at approximately 9:00 a.m., plaintiff, Jennifer

Bedel, was traveling south on Interstate 75 “near GE Aviation when a black car with

Florida license plates in the middle lane hit a metal object in the roadway causing it to

fly up and strike the drivers side door of my 2010 Toyota Sienna.” The propelled object

placed a dent and scratches in the driver’s side door. Plaintiff implied that the damage

to the automobile was proximately caused by negligence on the part of defendant,

Department of Transportation (ODOT), in failing to maintain the roadway free of

hazardous debris conditions. Plaintiff filed this complaint seeking to recover $904.05,

which represents the total cost of related expense associated with having her car

repaired and reimbursement of the filing fee. The $25.00 filing fee was paid.

        {¶ 2} Defendant denied liability based on the contention that no ODOT

personnel had any knowledge of the damage-causing debris condition prior to plaintiff’s

incident. Defendant located the debris between mileposts 13.00 and 13.38 on I-75 in
Hamilton County. Defendant asserted plaintiff failed to establish the length of time the

debris existed on the roadway prior to her property-damage event.              Defendant

suggested, “that the debris existed in that location for only a relatively short amount of

time before plaintiff’s incident.” Defendant contended plaintiff failed to establish the

damage-causing debris condition was attributable to any conduct on the part of ODOT.

      {¶ 3} For plaintiff to prevail on a claim of negligence, she must prove, by a

preponderance of the evidence, that defendant owed her a duty, that it breached that

duty, and that the breach proximately caused her 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 she 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.

      {¶ 4} 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.
       {¶ 5} Alternatively, defendant denied that ODOT maintained its roadways

negligently. Plaintiff did not file a response.

       {¶ 6} Ordinarily 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.      Plaintiff provided insufficient evidence to show that any ODOT

activity caused the debris condition.

       {¶ 7} Generally, in order to recover in any suit involving injury proximately

caused by roadway conditions including debris, plaintiff must prove that 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 that the debris was present on the roadway prior to the incident forming the basis

of this claim. No evidence has been submitted to show that 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 that

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 that defendant had

constructive notice of the debris.

       {¶ 8} 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

debris to be on the roadway. Herlihy v. Ohio Department of Transportation (1999), 99-

07011-AD.

      {¶ 9} In her complaint, plaintiff acknowledged the debris plaintiff’s car struck

was displaced by a third party, another motorist. Defendant has denied liability based

on the particular premise 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 conduct needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin

Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769, Jordan v. Ohio Dept. of

Transp., Dist. 8, Ct. of Cl. No. 2010-01336-AD, 2010-Ohio-4583. However, defendant

may still bear liability if it can be established some act or omission on the part of ODOT

was the proximate cause of plaintiff’s injury.     No evidence has been presented to

establish the damage claimed was proximately caused by any act or omission on the

part of ODOT.
                                 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




JENNIFER BEDEL,                                         Case No. 2011-03260-AD

        Plaintiff,

        v.                                              Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

        Defendant.


                         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
                                                 Acting Clerk

Entry cc:
Jennifer Bedel                                   Jerry Wray, Director
8475 Bluebird Drive                              Department of Transportation
West Chester, Ohio 45069                         1980 West Broad Street
                                                 Columbus, Ohio 43223




6/9
Filed 7/19/11
Sent to S.C. reporter 10/27/11
