[Cite as Parsons v. Ohio Dept. of Transp., 2011-Ohio-5323.]



                                                        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



MARK E. PARSONS

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant
       Case No. 2008-11290

Judge Joseph T. Clark
Magistrate Anderson M. Renick

MAGISTRATE DECISION



        {¶1} Pursuant to Civ.R. 53, Magistrate Anderson M. Renick was appointed to
conduct all proceedings necessary for decision in this matter.
        {¶2} Plaintiff brought this action against defendant, the Ohio Department of
Transportation (ODOT), alleging negligence. The issues of liability and damages were
bifurcated and the case proceeded to trial on the issue of liability.
        {¶3} Plaintiff alleges that defendant failed to maintain a drainage ditch that runs
alongside State Route (SR) 555 and that, as a result of such failure, the drainage
system became obstructed causing water and debris to flow onto plaintiff’s property
during a rainstorm on or about June 6, 2008.                  Plaintiff testified that rain water
accumulated on his property and deposited dirt and a “black, mirky” substance which
contaminated his garden and a spring that he used to water livestock.                     (Plaintiff’s
Exhibits A1-12 and B1-14.)
        {¶4} In order for plaintiff to prevail under a theory of negligence, plaintiff must
establish that ODOT owed plaintiff a duty to maintain the drainage system in working
Case No. 2008-11290                       -2-                 MAGISTRATE DECISION

order, that ODOT’s acts or omissions resulted in a breach of that duty, and that plaintiff
suffered damages as a proximate result thereof. Strother v. Hutchinson (1981), 67 Ohio
St.2d 282. The duty element of a negligence claim may be established by common law,
legislative enactment, or the particular circumstances of a given case. Wallace v. Ohio
Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, ¶23.
       {¶5} Pursuant to R.C. 5501.11(A), ODOT is responsible for establishing “state
highways on existing roads, streets, and new locations and [to] construct, reconstruct,
widen, resurface, maintain, and repair the state system of highways and the bridges and
culverts thereon.”
       {¶6} As a general rule, “[w]here damage to one property is alleged by water run-
off created by an adjacent property owner, Ohio has adopted a reasonable-use rule with
respect to water run-off. McGlashan v. Spade Rockledge Terrace Condo Dev. Corp.
(1980), 62 Ohio St.2d 55, 60.” Peters v. Angel’s Path, LLC, Erie App. No. E-06-059,
2007-Ohio-7103, ¶33. Similarly, “a possessor of land is not unqualifiedly privileged to
deal with surface water as he pleases, nor absolutely prohibited from interfering with the
natural flow of surface waters to the detriment of others. Each possessor is legally
privileged to make a reasonable use of his land, even though the flow of surface waters
is altered thereby and causes some harm to others. He incurs liability only when his
harmful interference with the flow of surface water is unreasonable.”        Id., quoting
McGlashan, at the syllabus. The reasonableness of an interference is determined by
the trier of fact. Id.
       {¶7} ODOT may be held liable for damage caused by defects, or dangerous
conditions, on state highways where it has notice of the condition, either actual or
constructive.     McClellan v. Ohio Dept. of Transp. (1986), 34 Ohio App.3d 247,
paragraph one of the syllabus. “Actual notice exists where, from competent evidence,
the trier of fact can conclude the pertinent information was personally communicated to,
or received by, the party.” Kemer v. Ohio Dept. of Transp., Franklin App. No. 09AP-
248, 2009-Ohio-5714, ¶21, citing In re Fahle’s Estate (1950), 90 Ohio App. 195, 197.
Case No. 2008-11290                         -3-               MAGISTRATE DECISION

Constructive notice is that notice which the law regards as sufficient to give notice and
is regarded as a substitute for actual notice. Id. at ¶24.
       {¶8} According to plaintiff, he contacted defendant’s District 10 office several
times after the incident and defendant’s employees inspected his property on several
occasions.     Plaintiff’s complaints to defendant were documented and forwarded to
James Kemp, a maintenance engineer for defendant.               (Defendant’s Exhibit E.)
According to defendant’s records, Kemp visited the site on June 11, 2008, and on the
same date he scheduled “a ditching crew with a gradall to re-establish” the ditch.
Plaintiff testified that after one such inspection Kemp informed him that defendant would
clean the ditch. Plaintiff also met with Robert Roush, a transportation engineer who
worked in defendant’s District 10 office in Marietta, Ohio.      Both Kemp and Roush
advised plaintiff that defendant was not responsible for cleaning any debris on plaintiff’s
property.
       {¶9} At trial, Roush identified relevant portions of defendant’s location and design
manual which sets forth standards for designing and maintaining roadway drainage
ditches.     (Defendant’s Exhibit F.)     According to the manual, drainage ditches
constructed along relatively low-traffic highways, such as SR 555, were designed based
upon a “five-year frequency storm.” Roush testified that an unusually heavy rain could
cause a properly constructed and maintained drainage ditch to overflow.
       {¶10}      Roush stated that defendant’s maintenance records show that on
March 5, 2008, defendant’s employees cleaned all the drainage structures on SR 555 in
District 10, in preparation for the resurfacing project. (Defendant’s Exhibit D.) Roush
related that it was defendant’s practice to inspect the depth and width of roadway
ditches prior to resurfacing. Roush testified that a private contractor, Shelly & Sands,
Inc., had worked on a resurfacing project on SR 555 from May through mid-July 2008.
According to Roush, defendant did not receive any complaint regarding drainage on SR
555 between March and June 2008. Roush testified that he spoke with plaintiff after the
Case No. 2008-11290                       -4-                 MAGISTRATE DECISION

incident and that he did not notice any defect when he inspected the ditch on
September 18, 2008.
       {¶11}     The evidence shows that defendant’s employees responded to
plaintiff’s complaints and inspected the drainage ditches soon after they were notified of
the overflow on plaintiff’s property. Roush’s testimony regarding the maintenance of
the ditches convinces the court that defendant had neither actual nor constructive notice
of any obstruction or defect which would cause the drainage system to overflow.
Accordingly, the court finds that plaintiff has failed to prove that defendant committed a
breach of its duty to maintain the highway drainage ditch.
       {¶12}     Furthermore, even if defendant had committed a breach of its duty, to
prevail on his negligence claim plaintiff must establish that such breach proximately
caused damage to his property. On cross examination, plaintiff acknowledged that he
had received a letter from Anthony Ruggiero, an environmental permitting and
compliance officer for Shelly & Sands, Inc., wherein Ruggiero reported results of tests
on both soil and water samples that were taken from plaintiff’s property on September 3,
2008. (Defendant’s Exhibit A.) According to Ruggiero, Stantec Consulting Services,
Inc. performed tests which “show no detectable hydrocarbons” in the spring water
samples and “no increase in hydrocarbons above the control soil sample.” In his report,
Ruggiero states that he conducted a site inspection of plaintiff’s property and detected
“no signs consistent with an asphalt emulsion run off,” such as “black asphalt sticking to
vegetation, and black stringing asphalt floating and/or sticking to algae in the spring.”
Plaintiff testified that he believed the black, mirky substance was residue from the
roadway; however, he admitted that he did not know what the substance was and that
he did not observe the substance wash off the roadway. Although photographs of
plaintiff’s property show a few areas where somewhat murky puddles of water had
accumulated on soil and vegetation, plaintiff failed to show that the substance damaged
his property.
Case No. 2008-11290                           -5-               MAGISTRATE DECISION

          {¶13}      For the foregoing reasons, the court finds that plaintiff has failed to
prove his negligence claim.         Accordingly, judgment is recommended in favor of
defendant.
          {¶14}      A party may file written objections to the magistrate’s decision within
14 days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).



                                            _____________________________________
                                            ANDERSON M. RENICK
                                            Magistrate

cc:


Christopher P. Conomy                           Mark E. Parsons
Assistant Attorney General                      14653 State Route 555
150 East Gay Street, 18th Floor                 Cutler, Ohio 45724
Columbus, Ohio 43215-3130

AMR/dms
Filed September 14, 2011
To S.C. reporter October 13, 2011
