[Cite as Phillips v. Ohio Dept. of Transp., 2010-Ohio-5458.]

                                       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




ROGER PHILLIPS

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-03282-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On August 30, 2009, at approximately 4:00 p.m., plaintiff, Roger Phillips,
was traveling west on State Route 224 in Seneca County, when his 1998 GMC Sierra
struck a dislodged raised pavement marker (RPM or reflector) causing damage to the
truck and a fertilizer spray tanker that was placed on a utility trailer being hauled by the
truck. Plaintiff recalled he drove over the uprooted RPM which propelled the RPM into
the right rear tire, hubcap, and rim of his vehicle. Plaintiff described further damage
relating “[t]he reflector then ricocheted off the rim and struck my fertilizer spray tanker;
which was being hauled in my utility trailer pulled behind my truck.”                    According to
plaintiff, further damage to his truck ensued when “[t]he reflector flew upwards and
slammed back down striking the rear passenger bed of my truck as well.”
        {¶ 2} Plaintiff asserted his property damage was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in failing to
maintain the roadway free of hazardous conditions such as a loose road reflector
subject to being easily dislodged.               Plaintiff filed this complaint seeking to recover
damages in the amount of $1,905.91, representing the total loss of his spray tanker,
thirty-five gallons of fertilizer, and the total cost of vehicle repair expenses. The filing
fee was paid.
       {¶ 3} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of a loose reflector on the roadway prior to
plaintiff’s August 30, 2009 property damage occurrence. Defendant denied receiving
any calls or complaints from any entity regarding a loose reflector which ODOT located
“at milepost 1.05 on SR 224 in Seneca County.” Defendant asserted that plaintiff did
not produce any evidence to establish the length of time that the uprooted reflector was
on the roadway prior to 4:00 p.m. on August 30, 2009.           Defendant suggested the
uprooted road reflector condition “existed in that location for only a relatively short
amount of time before plaintiff’s incident.”
       {¶ 4} 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 224 during the six-month period preceding August
30, 2009. Defendant noted that ODOT workers conducted “mowing” operations in the
vicinity of plaintiff’s incident on June 4, 2009 and did not discover any dislodged
reflector on the roadway on that date. Defendant stated that if “ODOT work crews were
doing activities such that 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.
       {¶ 5} Defendant submitted a photograph depicting an area of State Route 224
where a reflector near the white roadway edge line has been installed to presumedly
replace a reflector that had been uprooted. The photograph shows the remnants of a
reflector that apparently had been removed. The photograph was taken at sometime
before April 30, 2010.
       {¶ 6} Plaintiff filed a response, submitted witness statements from his wife,
Brenda Phillips, and his son, Blake Phillips. Both Brenda Phillips and Blake Phillips
advised that they heard something strike plaintiff’s vehicle while traveling on State
Route 224 and after exiting the vehicle observed an uprooted RPM. Plaintiff submitted
photographs depicting the particular reflector which appears to be in good condition and
totally intact. Plaintiff also submitted photographs depicting the roadway area where the
RPM had been installed. The roadway area has since been patched. All submitted
photographs are dated May 9, 2010. Plaintiff did not provide any evidence to establish
the length of time the damage-causing reflector had become dislodged prior to 4:00
p.m. on August 30, 2009.        Brenda Phillips and Blake Phillips did not produce any
evidence to establish the length of time the particular reflector had become dislodged
prior to the incident forming the basis of this claim.
       {¶ 7} 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.
       {¶ 8} 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.
       {¶ 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. Generally, defendant is only liable
for roadway conditions of which it has notice, but fails to correct. Bussard. However,
proof 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 loosened reflector prior to 4:00 p.m. on August 20,
2009.
        {¶ 11} 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.
        {¶ 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, 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 is 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 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 the
uprooted 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 road 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 the dislodged reflector.
      {¶ 14} 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
periodically performing work activities on the particular section of State Route 224
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 property. 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




ROGER PHILLIPS

      Plaintiff
        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-03282-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:

Roger Phillips                                    Jolene M. Molitoris, Director
104 Rosewood Place                                Department of Transportation
Carey, Ohio 43316                                 1980 West Broad Street
                                                  Columbus, Ohio 43222
RDK/laa
6/1
Filed 7/20/10
Sent to S.C. reporter 11/5/10
