[Cite as Taylor v. Ohio Dept. of Transp., 2015-Ohio-4854.]




                              IN THE COURT OF CLAIMS OF OHIO



DONALD TAYLOR SR.

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2014-00955-AD

Clerk Mark H. Reed

MEMORANDUM DECISION

        {¶1} Plaintiff Donald Taylor filed this claim on December 9, 2014, to recover
damages which occurred when his 2003 Saturn Ion struck a large metal crate that was
lying in the roadway while 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 $900.00.                  Plaintiff maintains an insurance
deductible 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
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.
Case No. 2014-00955-AD                      -2-               MEMORANDUM DECISION


       {¶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 March 12, 2015, the defendant stated that
the location of the incident was on IR 90 between Milepost 172.9 to 173.2 in Cuyahoga
County. This section of the roadway has an average daily traffic count of between
86,760 and 91,580 vehicles. Despite this volume of traffic, the department had received
no notice of any road debris on this highway immediately prior to plaintiff’s incident, thus
the court is unable to find that the department knew about the road debris. According to
the same report, roadway inspections were conducted on a routine basis and in fact
within the past six months, the department conducted over four hundred thirty (430)
maintenance operations on IR 90 in Cuyahoga County. If any road debris was present
for any appreciable length of time, it is probable that it would likely have been
discovered by the department’s work crews.         Thus, the court cannot find that the
department should have known about this road debris. Finally, the law in Ohio is that
the department is not an absolute insurer of a motorist’s safety on the highway. The
Case No. 2014-00955-AD                       -3-             MEMORANDUM DECISION

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



DONALD TAYLOR SR.

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

Case No. 2014-00955-AD

Clerk Mark H. Reed

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:
Case No. 2014-00955-AD           -4-              MEMORANDUM DECISION



Donald Taylor, Sr.                     Jerry Wray, Director
1043 Outrigger Cove                    Ohio Department of Transportation
Painesville, Ohio 44077                1980 West Broad Street
                                       Mail Stop 1500
                                       Columbus, Ohio 43223


Filed 4/23/15
Sent to S.C. Reporter 11/24/15
