[Cite as Justice v. Ohio Dept. of Transp., 2011-Ohio-2494.]

                                       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




RHONDA R. JUSTICE

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

        Case No. 2010-10025-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Rhonda R. Justice, filed this action against defendant,
Department of Transportation (ODOT), contending her 2009 Pontiac G8 was damaged
as a proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on State Route 18 in Medina County. Specifically, plaintiff asserted the tire
and rim on her car were damaged when the vehicle struck a piece of wood in the
traveled portion of the roadway. Plaintiff advised her damage incident occurred “[w]hen
the vehicle in front of me traveling in the same direction, hit a piece of 2 X 4 in the road
which caused the piece of wood to kickback toward my vehicle” and plaintiff’s car in turn
struck the 2 X 4. Plaintiff located the described damage incident on State Route 18
west past “the Litchfield circle toward Bryonton Rd.” Plaintiff recalled her damage event
occurred on July 26, 2010 at approximately 5:30 p.m.            In her complaint, plaintiff
requested damages in the amount of $1,214.79, the total cost of replacement parts,
related repair expense, and work loss associated with having her car repaired. Also in
her complaint, plaintiff acknowledged she maintains insurance coverage for automotive
damage with a $500.00 deductible provision and she has received reimbursement from
her insurer in the amount of $666.79. Pursuant to R.C. 2743.02(D)1 plaintiff’s damage
claim is limited to $548.00, her insurance coverage deductible amount and work loss
claim. The $25.00 filing fee was paid and plaintiff requested reimbursement of that cost
along with her damage claim.
        {¶ 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 at milepost 1.56 on State Route 18 in Medina
County and advised ODOT did not receive any calls or complaints for debris at that
location despite the fact the particular “section of roadway has an average daily traffic
count between 3,860 and 5,360 vehicles.”                   Defendant suggested, “that the debris
existed in that location for only a relatively short amount of time before plaintiff’s
incident.” Defendant asserted plaintiff failed to establish the length of time the debris
existed on the roadway prior to her property damage event. Defendant pointed out the
ODOT Medina County Garage received a phone call from plaintiff about her damage
occurrence on July 26, 2010 at approximately 11:35 a.m. Therefore, defendant advised
the actual date of plaintiff’s incident was July 25, 2010 and not July 26, 2010 as
referenced in plaintiff’s complaint. Defendant insisted no ODOT personnel had any
knowledge of a wooden object at milepost 1.56 on State Route 18 prior to the described
incident forming the basis of this claim. Defendant contended plaintiff failed to establish
the damage-causing debris condition was attributable to any conduct on the part of
ODOT. Defendant noted plaintiff’s evidence in her complaint pointed to the fact the
damage-causing wooden object was displaced on the roadway by an unidentified third
party not affiliated with ODOT. Defendant pointed out plaintiff stated in her complaint
that the wooden debris was thrown into the path of her car by another unidentified third
party motorist. Defendant argued ODOT is generally not liable for damage caused by
the acts of third parties with no connection to ODOT.
        {¶ 3} Defendant related the ODOT “Medina County Manager conducts roadway
inspections on all state roadways within the county on a routine basis, at least one to


        1
            R.C. 2743.02(D) states:
          “(D) Recoveries against the state shall be reduced by the aggregate of insurance proceeds,
disability award, or other collateral recovery received by the claimant. This division does not apply to civil
actions in the court of claims against a state university or college under the circumstances described in
section 3345.40 of the Revised Code. The collateral benefits provisions of division (B)(2) of that section
two times a month.” Apparently, no debris was discovered at milepost 1.56 on State
Route 18 the last time that section of roadway was inspected before July 25, 2010. The
claim file is devoid of any inspection record.    Defendant did submit a six-month
maintenance history of the specific roadway area in question which recorded twelve
maintenance operations were performed in the relevant area of State Route 18 during
the time frame covered. According to the submitted maintenance history, the last time
ODOT personnel were working in the area was on July 8, 2010 when sign mounting
operations were conducted. The last time litter was removed from the area was on
June 1, 2010. Defendant stated “if ODOT personnel had found any debris it would have
been picked up.” Defendant argued plaintiff failed to produce evidence to show her
property damage was proximately caused by negligent maintenance on the part of
ODOT.
       {¶ 4} 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.
       {¶ 5} 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.

apply under those circumstances.”
      {¶ 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.
      {¶ 7} 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 notice of a dangerous conditions 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 her property damage was caused by a defective condition created by ODOT or that
defendant knew about the particular debris condition prior to 5:30 p.m. on July 25, 2010.
      {¶ 8} Ordinarily, 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 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 that ODOT had
actual notice of the damage-causing 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 fact 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 wooden debris 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 condition.
Also, 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 wooden 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 on the roadway.
      {¶ 11} Evidence in the instant action is undisputed to show that plaintiff’s damage
was caused by an act of an unidentified third party. Defendant has denied liability
based on the particular premise that 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. See Federal Steel &
Wire Corp. v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However,
defendant may still bear liability if it can be established if some act or omission on the
part of ODOT was the proximate cause of plaintiff’s injury. 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.
      {¶ 12} “If an injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of the negligence.        It is not
necessary that the defendant should have anticipated the particular injury.          It is
sufficient that his act is likely to result in an injury to someone.” Cascone v. Herb Kay
Co. (1983), 6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber
Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171
N.E. 327.
      {¶ 13} Evidence in the instant claim tends to show the debris condition was
caused by an unidentified third party and not negligent maintenance on the part of
ODOT. Plaintiff has not produced any evidence to infer defendant, in a general sense,
maintains its highways negligently or that defendant’s acts caused the defective
condition or conditions. Herlihy v. Ohio Department of Transportation (1999), 99-07011-
AD.
      {¶ 14} Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to plaintiff, or that plaintiff’s injury was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing object at the time of the damage incident was connected to any conduct under
the control of defendant or any negligence on the part of defendant proximately caused
the damage. Herman v. Ohio Dept. of Transp. (2006), 2006-05730-AD; Husak v. Ohio
Dept. of Transp., Ct. of Cl. No. 2008-03963-AD, 2008-Ohio-5179.




                              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




RHONDA R. JUSTICE

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

Case No. 2010-10025-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:

Rhonda R. Justice                                 Jerry Wray, Director
14112 Mason Road                                  Department of Transportation
Vermilion, Ohio 44089                             1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
2/16
Filed 3/4/11
Sent to S.C. reporter 5/16/11
