[Cite as Bymaster v. Ohio Dept. of Transp., 2011-Ohio-3533.]

                                      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




JACQUELYN BYMASTER

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2010-11145-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Jacquelyn Bymaster, filed this action against defendant,
Department of Transportation (ODOT), contending her 2003 Mercury Sable was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on State Route 320 in Preble County. Specifically, plaintiff claimed
her car was damaged when she drove the vehicle over a tree limb laying across the
roadway at the crest of a hill “in a very shady area which could not be seen at all.”
Plaintiff recalled the described damage event occurred on August 17, 2010. In her
complaint, plaintiff requested damage recovery in the amount of $584.77, the total cost
of replacement parts and related repair expense she incurred as a result of the August
17, 2010 incident. The filing fee was paid.
        {¶ 2} Defendant conducted an investigation and determined the location of the
fallen tree limb “between mileposts 2.0 and 2.2 on SR 320 in Preble County.”
Defendant asserted “ODOT did not receive any reports of the tree limb or have any
knowledge of the tree limb prior to the incident.” Defendant suggested, “it is likely the
tree limb existed for only a short time before the incident.” Defendant pointed out
plaintiff did not offer any evidence to establish the length of time the fallen tree limb was
laying on the roadway prior to her August 17, 2010 damage occurrence.
      {¶ 3} Defendant contended plaintiff did not produce any evidence to prove her
property damage was proximately caused by negligent maintenance.                Defendant
advised the ODOT “Preble County Manager inspects all state roadways within the
county at least two times a month.” Apparently, no problem with a fallen tre limb was
discovered the last time State Route 320 between milepost 2.0 and 2.2 was inspected
prior to August 17, 2010. The claim file is devoid of any inspection record. Defendant
did submit a copy of “Maintenance Records” covering the period from February 17,
2010 to August 17, 2010, which addressed maintenance work performed on State
Route 320 by ODOT personnel.            On May 27, 2010, ODOT crews conducted
maintenance of shrubs, plants, and trees along the roadway at milepost 2.0. The entry
for this maintenance work includes the notation “tree limb hanging in road.” According
to the submitted “Maintenance Records,” ODOT personnel conducted shoulder and
ditch work at milepost 2.2 on August 12, 2010, five days prior to plaintiff’s incident. The
day before plaintiff’s incident, August 16, 2010, ODOT crews maintained trees, plants,
and shrubs at milepost 2.4. Apparently, no downed tree limb was discovered in the
area when the work was performed on August 16, 2010.
      {¶ 4} Plaintiff filed a response.      Plaintiff did not provide any evidence to
establish the length of time the fallen tree limb was laying on State Route 320 prior to
her August 17, 2010 incident.
      {¶ 5} For plaintiff to prevail on a claim of negligence, she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her 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 she 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.
      {¶ 6} 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.
      {¶ 7} 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.
      {¶ 8} Ordinarily, to recover in a suit involving injury proximately caused by
roadway conditions including fallen tree limbs, 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 as
evidence to establish negligent maintenance.
      {¶ 9} “[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 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.
       {¶ 10} Plaintiff has not produced any evidence to indicate the length of time that
the tree limb debris was present on the roadway prior to the incident forming the basis
of this claim. Plaintiff has not shown that defendant had actual notice of the condition.
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 fallen tree limb
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 fallen tree limb on the roadway.
       {¶ 11} Plaintiff, as a matter of law, in order to prevail, must present evidence with
regard to the condition of the tree and the trier of fact is precluded from making any
inference of prior notice unless such evidence is submitted. See Shupe v. Ohio Dept. of
Transp., Ct. of Cl. No. 2003-04457-AD, 2004-Ohio-644; Blausey v. Ohio Dept. of
Transp., Ct. of Cl. No. 91-13003, 2005-Ohio-1807; Varns v. Ohio Dept. of Transp., Dist.
5 (2006), Ct. of Cl. No. 2006-05233-AD; Campbell v. Ohio Dept. of Transp., Ct. of Cl.
No. 2008-01120-AD, 2008-Ohio-5777; Miller v. Ohio Dept. of Transp., Ct. of Cl. No.
2008-03971-AD, 2008-Ohio-5912.        Plaintiff, in the instant claim, has failed to prove
defendant had requisite notice of the fallen tree.
       {¶ 12} 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.
Plaintiff has failed to provide sufficient evidence to prove that defendant maintained a
hazardous condition on the roadway which was the substantial or sole cause of her
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 her property. Hall v. Ohio Department of Transportation (2000),
99-12963-AD.
                               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




JACQUELYN BYMASTER

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

      Case No. 2010-11145-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:

Jacquelyn Bymaster                              Jerry Wray, Director
207 E. Main                                     Department of Transportation
New Paris, Ohio 45347                           1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
3/17
Filed 4/5/11
Sent to S.C. reporter 7/8/11
