[Cite as Zura v. Ohio Dept. of Transp., 2011-Ohio-1950.]

                                      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




W. JOHN ZURA

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-09663-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, W. John Zura, filed this action against defendant, Department of
Transportation (ODOT), contending his 2004 Pontiac Grand Prix was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a raised pavement
marker (RPM or reflector) on State Route 2 in Erie County. In his complaint, plaintiff
offered a narrative description of his damage incident noting: “[w]hile driving at about
60 mph in the right hand lane, another vehicle passed me in the left hand lane, and
upon crossing lanes, ran over a raised pavement marker, that dislodged from the road
and struck my vehicle on the left rear door.” Plaintiff recalled the described incident
occurred on April 15, 2010 at approximately 1:26 p.m. Plaintiff submitted a “Traffic
Crash Report” compiled by the local Ohio State Highway Patrol (OSHP) which
contained a handwritten statement from plaintiff addressing his recollection of the April
15, 2010 property damage event. Plaintiff wrote: “car passed me in the passing lane
and seen something fly toward my car heard a thud as something hit my car.”
According to information provided in the OSHP “Traffic Crash Report,” the damage-
causing reflector was uprooted from the pavement before the passing motorist struck it.
Plaintiff requested damage recovery in the amount of $644.33, the complete cost of
repairing the door on his 2004 Pontiac Grand Prix. The $25.00 filing fee was paid and
plaintiff requested reimbursement of that cost along with his damage claim.
       {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of a loose or defective RPM on the roadway prior
to plaintiff’s April 15, 2010 property damage occurrence. Defendant denied receiving
any calls or complaints from any entity regarding a loose reflector which ODOT located
“at milepost 6.80 on SR 2 in Erie County.” Defendant advised, “[t]his section of roadway
has an average daily traffic count between 24,980 and 28,590,” however, no record of
any prior complaint regarding a dislodged RPM was received. Defendant contended
plaintiff did not produce any evidence to establish the length of time the dislodged
reflector was on the roadway at milepost 6.80 prior to 1:26 p.m. on April 15, 2010.
Defendant suggested the uprooted road reflector condition “existed in that location for
only a relatively short amount of time before plaintiff’s incident.”
       {¶ 3} 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 2 during the six-month period preceding April 15,
2010. Defendant noted that ODOT workers “conducted thirty-one (31) Litter Pick-ups
on SR 2 for the past six months and there was a crew doing Litter Pick-up on April 13,
2010, which is two days before plaintiff’s incident.”        Apparently, no problems with
dislodged reflectors were discovered during the time ODOT crews were working on
April 13, 2010. 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.
       {¶ 4} 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.
       {¶ 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.
       {¶ 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.      However, proof of notice of a dangerous condition is not
necessary when defendant actively causes 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 reflector
condition prior to 1:26 p.m. on April 15, 2010.
       {¶ 7} Ordinarily, to recover in a suit involving injury proximately caused by
roadway conditions including uprooted reflectors, 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
ODOT had actual notice of the debris condition. Therefore, in order to recover plaintiff
must offer proof of defendant’s constructive notice of the condition as 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, 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 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 debris condition was present on the roadway prior to the incident forming the basis
of this claim. 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 debris condition appeared on the roadway.          Spires v. Ohio Department of
Transportation (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no indication
that defendant had constructive notice of the dislodged RPM.
      {¶ 10} Evidence in the instant action tends to show the damage-causing reflector
was originally uprooted by an unidentified third party motorist and subsequently
propelled into the path of plaintiff’s car by another motorist not affiliated with ODOT.
Defendant has denied liability based on the particular premise it had no duty to control
the conduct of a third person except where a special relationship exists between
defendant and either plaintiff or the person whose conduct needs to be controlled.
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 or its agents was the proximate cause of plaintiff’s injury.
Plaintiff has failed to prove, by a preponderance of the evidence, that defendant failed to
discharge a duty owed to him, or that his injury was proximately caused by defendant’s
negligence.       Plaintiff failed to show 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 or its agents. Hall v. Ohio Dept. of Transp. (2006),
2006-05730-AD.
       {¶ 11} 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 routinely performing
work activities on the particular section of State Route 2 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 vehicle. Prstojevic v. Dept. of Transp., Dist. 3, Ct.
of Cl. No. 2009-08519-AD, 2010-Ohio-2186.




                                 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




W. JOHN ZURA

      Plaintiff

      v.
OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2010-09663-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:

W. John Zura                                      Jolene M. Molitoris, Director
105 James Street                                  Department of Transportation
Marblehead, Ohio 43440                            1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
12/27
Filed 2/4/11
Sent to S.C. reporter 4/15/11
