[Cite as Baker v. Ohio Dept. of Transp., 2015-Ohio-4861.]




                              IN THE COURT OF CLAIMS OF OHIO



ERIC BAKER

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant
Case No. 2015-00187-AD

Clerk Mark H. Reed

MEMORANDUM DECISION


        {¶1} Plaintiff Eric Baker filed this claim on March 11, 2015 to recover damages
which occurred when his 2011 BMW struck a chunk of asphalt that was kicked up into
the air by another vehicle. At the time of the accident on February 12, 2015, plaintiff was
traveling on I-90 west in Cuyahoga County, Ohio. This road is a public road maintained
by the Ohio Department of Transportation. Plaintiff’s vehicle sustained damages in the
amount of $2,549.16.           Plaintiff maintains an insurance deductible in the amount of
$500.00.
        {¶2} In order to recover on a claim for roadway damages against the Ohio
Department of Transportation, Ohio law requires that a motorist/plaintiff prove all of the
following:
        {¶3} That the plaintiff’s motor vehicle received damages as a result of coming
into contact with a dangerous condition on a road maintained by the defendant.
        {¶4} That the defendant knew or should have known about the dangerous road
condition.
        {¶5} That the defendant, armed with this knowledge, failed to repair or remedy
the dangerous condition in a reasonable time.
        {¶6} In this claim, the court finds that the plaintiff did prove that his vehicle
Case No. 2015-00187-AD                      -2-               MEMORANDUM DECISION


received damages and that those damages occurred as a result of the plaintiff’s vehicle
coming into contact with a dangerous condition on a road maintained by the defendant.
       {¶7} The next element that a plaintiff must prove to succeed on a claim such as
this is to show that the defendant knew or should have known about this dangerous
condition.
       {¶8} Based on the evidence presented, the court is unable to find that the
defendant had actual knowledge of the dangerous condition. Likewise, the court is
unable to find that the defendant should have known about this dangerous condition
and thus would have had constructive notice about the highway danger. Constructive
notice is defined as “(n)otice arising from the presumption of law from the existence of
facts and circumstances that a party has a duty to take notice of…Notice presumed by
law to have been acquired by a person and thus imputed to that person.” (Black’s Law
Dictionary at 1090 8th Ed. 2004.)
       {¶9} In order for there to be constructive notice, a plaintiff must prove that
sufficient time has passed after the dangerous condition first appears, so that under the
circumstances the defendant should have gained knowledge of its existence. This the
plaintiff has been unable to do.
       {¶10} In the Investigation Report filed May 26, 2015, the defendant stated that
the location of the incident was at mile marker 160.0 on IR 90 west in Cuyahoga
County. Plaintiff disputes that the accident occurred at this location, instead insisting in
his response that the location was at mile marker 161. This section of the roadway has
an average daily traffic count of between 75,220 and 90,670 vehicles. Despite this
volume of traffic, the department had received no notice of loose road debris being
present on this section of the highway.      Thus, the court is unable to find that the
department knew about the debris.         Within the past six months, the department
conducted three hundred seventeen (317) maintenance operations on IR 90 in
Cuyahoga County. Thus, if any road debris was present for an appreciable length of
time, it is probable that it would likely have been discovered by the department’s work
Case No. 2015-00187-AD                     -3-              MEMORANDUM DECISION


crews, or more likely the Department would have been notified by a passing motorist of
the hazard. Thus, it is more probable than not that the loose asphalt had only moved
into its hazardous location very near the time plaintiff had his accident. The Department
thus had no notice or reasonable opportunity to otherwise become aware of the hazard
and remedy the situation. Thus, the court cannot find that the department should have
known about this road hazard. Finally, the law in Ohio is that the department is not an
absolute insurer of a motorist’s safety on the highway. The department is only liable for
damage when the court finds that it was negligent. This the court is unable to do. The
plaintiff did not offer any evidence to counter what was in the defendant’s report
regarding this element.
      {¶11} Since the plaintiff is unable to prove that the defendant knew or should
have known about this dangerous condition, the claim must fail.




                          IN THE COURT OF CLAIMS OF OHIO



ERIC BAKER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

Case No. 2015-00187-AD

Clerk Mark H. Reed
Case No. 2015-00187-AD                       -2-               MEMORANDUM DECISION


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.




                                                   ________________________________
                                                   MARK H. REED
                                                   Clerk

Entry cc:

Eric Baker                                         Jerry Wray, Director
722 Elmwood Road                                   Ohio Department of Transportation
Rocky River, Ohio 44116                            1980 West Broad Street
                                                   Mail Stop 1500
                                                   Columbus, Ohio 43223


Filed 6/26/15
Sent to S.C. Reporter 11/24/15
