[Cite as Millwood v. Ohio Dept. of Transp., Dist. 2, 2010-Ohio-3790.]

                                       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




DANNY MILLWOOD

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 2

        Defendant

        Case No. 2009-09175-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Danny Millwood, filed this action against defendant, Department
of Transportation (ODOT), contending that his 2000 Dodge Durango truck was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on State Route 2 in Lucas County. Specifically, plaintiff claimed
the tire on his truck was punctured by a dislodged raised pavement marker (RPM or
reflector) laying in the west bound lane of Airport Highway (State Route 2). Plaintiff
recalled the damage incident occurred on Saturday, November 14, 2009, at
approximately 2:00 p.m. Plaintiff requested damage recovery of $178.27, an amount
representing the cost of a replacement tire and towing expenses. The filing fee was
paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of a loose or defective RPM on the roadway prior
to plaintiff’s November 14, 2009 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 5.28 on SR 2 in Lucas County.” Defendant
asserted plaintiff did not produce any evidence to establish the length of time that the
loose RPM was on the roadway prior to 2:00 p.m. on November 14, 2009. Defendant
suggested the particular RPM, “existed in that location for only a relatively short amount
of time before plaintiff’s incident.”
       {¶ 3} Defendant contended plaintiff did not offer any evidence to prove his
property damage was proximately caused by any conduct attributable to ODOT
personnel. Defendant explained ODOT conducted various maintenance operations on
this particular section of State Route 2 during the six-month period preceding November
13, 2009. Defendant’s records (copies submitted) also show ODOT, “had conducted
eighteen (18) maintenance operations,” in the area during the six-month period prior to
the day of plaintiff’s incident. Defendant’s records show ODOT conducted litter patrol
operations on State Route 2 on October 23, 2009, and this activity covered the area
where plaintiff ran over the dislodged RPM.       Apparently, ODOT personnel did not
discover any problems with any RPM on State Route 2 on October 23, 2009 when litter
patrols were in operation. Defendant stated, “if there was a noticeable defect with any
raised or loosened pavement markers it would have immediately been repaired.”
Defendant argued it did not believe ODOT breached any duty of care owed to the
motoring public in regard to roadway maintenance.
       {¶ 4} Defendant submitted an e-mail from ODOT Lucas County Transportation
Manager, Ross Echler, regarding a November 16, 2009 inspection of State Route 2 in
the vicinity of mile marker 5.28 he conducted. Echler also submitted photographs of the
roadway area in question. Echler advised that all the RPMs near mile marker 5.28, “are
in good condition.” Furthermore, Echler noted: “I do not see any RPMs that just come
out of the pavement, sticking up, or laying on the roadway/shoulders.”         Echler did
observe that some RPMs were missing from the roadway surface, but expressed the
opinion the missing reflectors had, “been gone from some time, yellow paint is in the
bottom of the hole and sand covers that.”       The submitted photographs depict the
roadway conditions where RPMs have been dislodged and also show intact RPMs,
apparently installed near the areas where RPMs are missing.
       {¶ 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 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.          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.
      {¶ 6} 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.
      {¶ 7} 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 2:00 p.m. on November 14, 2009.
      {¶ 8} 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), 75-0287-AD. Plaintiff has not provided any evidence to prove
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.
      {¶ 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 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 RPM.      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 RPM.
      {¶ 11} 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. Defendant submitted evidence showing ODOT personnel were
routinely performing work activities on the particular section of State Route 2 where
plaintiff’s damage incident occurred. Plaintiff has failed to provide sufficient evidence to
prove 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




DANNY MILLWOOD

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 2

      Defendant

       Case No. 2009-09175-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:

Danny Millwood                                    Jolene M. Molitoris, Director
10430 Airport Hwy. Lot 201                        Department of Transportation
Swanton, Ohio 43558                               1980 West Broad Street
                                                  Columbus, Ohio 43223

RDK/laa
3/18
Filed 4/2/10
Sent to S.C. reporter 8/13/10
