[Cite as Hawk v. Ohio Dept. of Transp., Dist. 10, 2010-Ohio-5829.]

                                       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




RONALD HAWK

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 10

       Defendant
       Case No. 2010-02391-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Ronald Hawk, filed this action against defendant, Department of
Transportation (ODOT), contending his 1997 Ford Ranger truck was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous debris
condition on US Route 33 in Athens County. On December 28, 2009, at approximately
11:30 p.m., Breianne Rasmussen was driving plaintiff’s truck west on US Route 33
when the vehicle ran over a fallen light pole that was laying across both westbound
lanes of the roadway “near milepost 015.” Plaintiff advised that all four rims on his truck
were damaged as a result of impacting with the downed light pole. Plaintiff filed this
complaint seeking to recover damages in the amount of $422.76, the total cost of
replacement parts and related repair expense. The $25.00 filing fee was paid and
plaintiff requested reimbursement of that cost along with his damage claim.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of a downed light pole on US Route 33 prior to plaintiff’s
property damage incident. Defendant related that ODOT “records indicate that no calls
or complaints were received regarding debris in the roadway or a damaged light pole
prior to plaintiff’s incident,” despite the fact the particular section of US Route 33 has an
average daily traffic count in excess of 80,000 vehicles. Defendant argued plaintiff has
failed to produce any evidence to establish the length of time the downed light pole was
on the roadway prior to 11:30 p.m. on December 28, 2009. Defendant advised that
ODOT personnel were unaware of any prior incidents at or near the location of the
downed light pole; milepost 15.0 on US Route 33 in Athens County. Defendant stated,
“ODOT believes the light pole in that location was damaged for only a relatively short
amount of time before plaintiff’s incident.” Defendant explained ODOT first received
notice of the fallen light pole at 11:50 p.m. on December 28, 2009 and personnel were
dispatched “within twenty minutes to remove the downed light pole.”            Defendant
asserted plaintiff has not provided any evidence to show the condition of the light pole
was attributable to any conduct on the part of ODOT.         Defendant further asserted
plaintiff did not offer any evidence to prove the light pole fell as a result of negligent
maintenance.
      {¶ 3} 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 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} 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.
       {¶ 6} No evidence has been presented to show defendant had actual notice of
the downed light pole laying across the traveled portion of the roadway. Therefore, in
order for plaintiff to prevail, constructive notice of the debris must be established. This
legal concept of notice is of two distinguishable types, actual and constructive. “The
distinction between actual and constructive notice is in the manner in which notice is
obtained or assumed to have been obtained rather than in the amount of information
obtained. Wherever from competent evidence the trier of fact is entitled to hold as a
conclusion of fact and not as a presumption of law that information was personally
communicated to or received by a party, the notice is actual. Constructive notice is that
which the law regards as sufficient to give notice and is regarded as a substitute for
actual notice.” In re Estate of Fahle (1950), 90 Ohio App. 195, 48 O.O. 231, 105 N.E.
2d 429, paragraph two of the syllabus.
       {¶ 7} To establish that defendant had constructive notice of a nuisance or defect
in the highways, the hazard “must have existed for such length of time as to impute
knowledge or notice.”      McClellan at 250      “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.
       {¶ 8} Plaintiff has not produced any evidence to indicate the length of time the
particular light pole was present on the roadway prior to the incident forming the basis fo
this claim.    Plaintiff has not shown defendant had actual notice of the light pole
condition.    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 the
light pole appeared on the roadway. Spires v. Ohio Highway Department (1988), 61
Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no indication defendant had constructive
notice of the downed light pole.
      {¶ 9} Evidence in the instant claim tends to show the downed light pole
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.
      {¶ 10} 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




RONALD HAWK

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 10
        Defendant

        Case No. 2010-02391-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:

Ronald Hawk                                      Jolene M. Molitoris, Director
5900 State Route 681                             Department of Transportation
New Marshfield, Ohio 45766                       1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
6/18
Filed 8/3/10
Sent to S.C. reporter 11/23/10
