[Cite as Legg v. Ohio Dept. of Transp., 2011-Ohio-7019.]




                                      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

TERRY P. LEGG

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

Case No. 2011-08938-AD

Deputy Clerk Daniel R. Borchert


                                     MEMORANDUM DECISION

        {¶ 1} Plaintiff, Terry Legg, filed this action against defendant, Ohio Department
of Transportation (ODOT), contending ODOT's negligence in maintaining a hazardous
condition on US 23 southbound proximately causing damage to his vehicle.
Specifically, plaintiff asserted the transmission was damaged when the vehicle struck a
piece of metal in the traveled portion of the roadway. Plaintiff described his damage
incident occurred in the following manner, “[a] car passed me and I glanced at it. When
I glanced back at the road, there was a chunk of metal laying in the road. I did not have
time to avoid it. When I ran over it, the piece of metal tore a hole in the bottom of the
transmission.” Plaintiff’s damage event occurred on June 2, 2011, at approximately
6:15 p.m. In his complaint, plaintiff requested damages in the amount of $1,135.53, the
total cost of replacement parts and related expense associated with having his car
repaired. The $25.00 filing fee was paid.
        {¶ 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 “near county milepost 16.28 or state milepost
32.96 on US 23 in Pike 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 14,890 and 16,180 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 his property damage event.
Defendant insisted no ODOT personnel had any knowledge of a metal object near
milepost 32.96 on US 23 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 related the ODOT
“Pike County Transportation Manager, travels each state highway twice a month in Pike
County and looks for potholes, low berms, and other safety hazards.” Apparently, no
debris was discovered at milepost 32.96 on US 23 the last time that section of roadway
was inspected before June 2, 2011. Defendant stated “if ODOT personnel had found
any debris it would have been picked up.” Defendant argued plaintiff failed to produce
evidence to show his property damage was proximately caused by negligent
maintenance on the part of ODOT.
       {¶ 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} Defendant professed liability cannot be established when requisite notice
of the damage-causing conditions cannot be proven. However, proof of notice 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 debris condition prior to 6:15 p.m. on June 2, 2011.
       {¶ 7} 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 or evidence to
establish negligent maintenance.
      {¶ 8} “[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, 47 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.
      {¶ 9} Plaintiff has not produced any evidence to indicate the length of time that
the metal debris was present on the roadway prior to the incident forming the basis of
this claim. 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 metal
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.
      {¶ 10} 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.
      {¶ 11} 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

TERRY P. LEGG

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant


Case No. 2011-08938-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 concurrentl herewith, judgment is rendered in favor of
defendant. Court costs are assessed against plaintiff.

                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Terry P. Legg                                     Jerry Wray, Director
1715 Coal Dock Road                               Department of Transportation
Waverly, Ohio 45690                               1980 West Broad Street
                                                  Columbus, Ohio 43223
10/7
Filed 10/18/11
Sent to S.C. reporter 3/13/12
