[Cite as Townsend v. Ohio Dept. of Transp., 2011-Ohio-3875.]




                                                       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




MICHAEL TOWNSEND, Guardian, etc.

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2008-11044


Judge Joseph T. Clark

DECISION




        {¶ 1} Plaintiff brought this action individually and as guardian on behalf of his
daughter, Violet Townsend, alleging claims of negligence against defendant, the Ohio
Department of Transportation (ODOT). Plaintiff has also asserted claims of loss of
consortium and spoliation. The issues of liability and damages were bifurcated and the
case proceeded to trial on the issue of liability.
        {¶ 2} This case arises out of a motor vehicle accident that occurred on April 23,
2005, at approximately 8:15 a.m., in Independence, Ohio. At the time, Violet was
driving on the exit ramp from Interstate 480 (I-480) to southbound Interstate 77 (I-77). It
was raining heavily. According to eyewitness testimony, Violet was traveling within the
posted speed limit at 50 to 55 miles per hour (mph) when her vehicle began to
hydroplane; it spun out of control and crashed into a guardrail on the left side of the
roadway. Violet suffered severe injuries and has been in a persistent vegetative state
since the time of the accident.
       {¶ 3} In order to prevail upon a claim of negligence, plaintiff must prove by a
preponderance of the evidence that defendant owed Violet a duty, that defendant’s acts
or omissions resulted in a breach of that duty, and that the breach proximately caused
the injuries at issue. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 81, 2003-
Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77.
       {¶ 4} ODOT has a general duty to maintain its highways in a reasonably safe
condition for the traveling public. Knickel v. Dept. of Transp. (1976), 49 Ohio App.2d
335. ODOT’s duties are more specifically defined in R.C. 5501.11(A)(1), which provides
in pertinent part that 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[.]” (Emphasis added.)
       {¶ 5} The issues in this case concern ODOT’s maintenance of two storm-water
catch basins located on the left side of I-480, a short distance north of the accident
location. Plaintiff alleges that ODOT breached its duty to maintain the highway in a
reasonably safe condition by failing to maintain, or periodically repair or replace, those
basins and the outlet pipes to which they were attached. Plaintiff maintains that the
basins were clogged with debris to the extent that they could not function as intended
but, rather, allowed water to accumulate unnaturally on the highway. Plaintiff further
maintains that ODOT was negligent in failing to implement a systematic, prioritized
maintenance program to prevent or minimize hazards caused by clogged catch basins.
       {¶ 6} ODOT denies liability and contends that plaintiff failed to factually prove
either the cause of the accident or the condition of the catch basins during the time
period in question. ODOT further asserts that it is entitled to discretionary immunity for
its decision not to adopt a prioritized catch basin maintenance program. Finally, ODOT
argues that any negligence that may be attributable to it is outweighed by Violet’s own
negligence.
      {¶ 7} In support of his claim, plaintiff presented the testimony of 23 lay witnesses
and that of an accident reconstruction expert. The following is a summary of the
testimony and other evidence presented.
      {¶ 8} ODOT’s District 12, Independence Yard, was responsible for the day-to-day
maintenance of the highways and adjacent areas where the accident occurred. Several
ODOT employees, including George Holloway, the Independence Yard manager, and
Brian Jung, the assistant manager, explained the procedures for maintaining catch
basins. The testimony established that ODOT road crews were trained to be observant
of conditions that needed attention on and along the roadways, that the roadways were
inspected on a regular basis to identify problem areas, that special efforts were made
during periods of heavy rainfall to inspect the roadways in order to identify any clogged
catch basins that might be contributing to adverse driving conditions, and that normal
procedures involved receiving and acting upon complaints from law enforcement
personnel and the general public concerning roadway conditions.
      {¶ 9} In addition to the Independence Yard’s regular procedures, James Marszal,
P.E., who was employed at the District 12 headquarters, communicated on an as-
needed basis with the maintenance department if he observed an area on the roadway
that he determined to be in need of attention. Marszal had worked as an Assistant
Maintenance Engineer for more than 19 years prior to assuming the position of
Pavement and Geotechnical Engineer that he held at the time of Violet’s accident;
however, he continued to provide assistance and support to his former department.
Furthermore, Marszal drove through the I-480/I-77 area on his way to and from
headquarters on each of his working days.
      {¶ 10} At some point around the time of the accident, Marszal observed that
during periods of heavy rainfall there would be more water on the I-480 ramp to I-77
than he would have expected. He also noticed that the guardrail in the area sustained
more dents and damage than he considered to be normal for a section of straight
roadway. Marszal began to consider potential causes for those conditions, including the
possibility of clogged catch basins. He subsequently observed debris in the two catch
basins where the accident occurred. Marszal sent an e-mail to Holloway, Jung, and
several other maintenance employees at the Independence Yard to request that
someone look into the matter and clean out the catch basins if necessary. Despite the
efforts of counsel and the involvement of the court in the parties’ pretrial discovery
issues, Marszal’s e-mail to Holloway, and any follow-up e-mails, could not be retrieved
from computer archives and were not available at trial. It is not clear whether Marszal’s
e-mail was sent before or after Violet’s accident or what action was taken in response to
it.
       {¶ 11} With respect to the necessity for a catch basin maintenance program,
evidence was presented that, prior to 2004, William Burnett, Manager of the Mayfield
Yard in District 12, requested that George Fowler, an ODOT program specialist,
develop an inventory database of storm-water catch basins. The purpose of the
database was to catalog the catch basins that then existed and to pinpoint their
locations; no data concerning maintenance of the basins was included. At some time
after that inventory was developed there was a culvert collapse on I-480. Fowler was
then asked to create a culvert maintenance database and a “culvert team” was
subsequently formed to inspect and prioritize the maintenance of culverts.
       {¶ 12} The evidence established that there are over 2,500 storm-water catch
basins in District 12’s Cuyahoga County, where the accident occurred. According to the
testimony, it is virtually impossible for ODOT to routinely service that number of catch
basins with its available resources. In recognition of that circumstance, and several
months after the culvert program was developed, the manager of ODOT’s Cleveland
Yard, Robert Boggess, began working on a maintenance tracking program for District
12’s storm-water catch basins. Boggess recognized that certain catch basins required
more maintenance than others. He discussed his ideas with his supervisor, Walter Biel,
ODOT’s Cuyahoga County Assistant Manager, and he assembled a “sewer rat” team.
Boggess then prepared a team charter to present to ODOT’s Quality Services through
Partnership committee. The purpose of the team was to create a systematic approach
to identifying and prioritizing the maintenance of storm-water catch basins. Although
the charter was presented and approved, and the team met at least six times to discuss
their mission, their plans never came to fruition. As of the time of trial, ODOT had not
implemented the proposed catch basin maintenance program.
       {¶ 13} Plaintiff’s expert, William Jackman, P.E., opined that ODOT was negligent
in several respects. Jackman visited the accident scene in July 2009 and photographed
the catch basins in question. The photographs show that one of the catch basins was
clogged up to the level of its grate cover and that the other had weeds and other
vegetation growing out of it. Based upon all of the evidence that he reviewed, it was
Jackman’s opinion that standing water caused by at least one clogged catch basin
contributed to an unnatural accumulation of water on the highway and resulted in the
hydroplaning of Violet’s vehicle. According to Jackman, ODOT knew or should have
known that clogged or partially clogged catch basins would allow water to accumulate
within the traveled portion of the roadway, that prioritized catch basin maintenance was
required to minimize clogging, that accumulations of water in a lane of travel would not
be readily apparent to approaching motorists, and that the increased incidence of
guardrail damage had to have an identifiable cause that should have been investigated.
With regard to the proposed catch basin maintenance program, Jackman opined that
ODOT was negligent in failing to implement the same, particularly because a culvert
maintenance program had been initiated and there was a catch basin inventory
available.
       {¶ 14} Upon consideration of all the evidence, the court finds as follows.
       {¶ 15} As a general rule, ODOT is liable for damages caused by defects or
dangerous conditions on state highways only 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. The distinction between the two types of notice is the
manner in which the notice is obtained, or assumed to have been obtained, rather than
in the amount of information conveyed. Generally, information that was personally
communicated to or received by a party constitutes actual notice. Constructive 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.
       {¶ 16} Throughout the course of the proceedings plaintiff has relied heavily upon
the holding in Knickel, supra, for the proposition that ODOT can be held liable on the
basis of “general” notice. The Knickel case involved a period of time in the 1970s when
concrete roadways that had been installed in the 1950s were being scheduled for
replacement due to the tendency of concrete to “blow-up,” or heave upward, causing
vehicles to be unexpectedly thrust into the air in an “Evel Knievel” fashion. The
question before the court in that case was whether ODOT could be held liable under the
facts, where it had general, but no particular notice as to the deterioration of the
roadway that gave rise to plaintiff’s injury. This court found in the affirmative on that
issue.
         {¶ 17} Upon review of this court’s determination, the Tenth District Court of
Appeals noted that “[t]he evidence clearly shows that a blow-up is a safety hazard in
concrete highways which has existed for * * * over 50 years. Research has been done
by experts to determine the cause of blow-ups and to prevent their occurrence. Ohio
has been a forefront leader in this research * * *.” Id. at 338-339. The appeals court
found that, “based upon the evidence in this case, there is a general foreseeability that
blow-ups will occur and that someone will be injured as the result. * * * [A]lthough there
is no way to predict where, when, or with what magnitude a blow-up will occur, they can
be prevented by the construction of non-concrete highways, and * * * be minimized by
the construction of pressure relief joints in order to minimize the danger from blow-ups.”
Id. at 339.
         {¶ 18} In determining who should bear the loss of sudden blow-ups, the state of
Ohio, or the general public, the Tenth District held that “the better answer is the state
which has the burden to maintain highways in a reasonably safe condition.” Id. The
appeals court concluded that this court did not err in finding that ODOT had general
notice of the condition causing the highway to erupt and could therefore be held liable
for its negligence in failing to maintain the highways in a reasonably safe condition.
         {¶ 19} Plaintiff contends that the facts of this case mirror those of Knickel and that
this court should reach the same result; that ODOT should be held liable because it had
general knowledge that clogged or partially clogged storm-water catch basins would not
function as intended and that it was foreseeable that, under such circumstances, water
would accumulate unnaturally within the traveled portion of the roadway and create a
hazard for unsuspecting motorists. Plaintiff further maintains that ODOT had general
knowledge of the hazardous roadway conditions caused by clogged catch basins
because it had developed but not yet implemented a prioritized catch basin
maintenance program.
       {¶ 20} The court disagrees with plaintiff’s analysis of the Knickel case and finds
that the facts of that case differ markedly from the instant action. In Knickel, the cause
of the hazardous condition of the roadway was clear (the heaving of the concrete
material from which it was made), the condition had been well known and researched
for many years, the solutions to the problem had been identified, plans and
specifications had been drawn up to implement corrective measures, and there was
little if any evasive action that a motorist could utilize when faced with a sudden,
unexpected blow-up.
       {¶ 21} By contrast, in the case of unnatural accumulations of water on the
roadway, a blocked catch basin may be one cause of such condition but many other
factors can be involved, including the grade of the roadway, the location, and the
volume and type of traffic. More importantly, heavy rainfall in and of itself can cause
hazardous driving conditions. As such, there is no clear solution to the problem as
there was in Knickel. Although a prioritized catch basin maintenance program could
help to reduce the occurrence of excess water on a particular area of roadway, it is not
a definitive or permanent answer in the manner that replacement of concrete was in
Knickel. Moreover, there is no evidence that motorists traveling through the I-480/I-77
interchange during periods of heavy rainfall routinely encountered unnatural
accumulations of water on the roadway to the extent that it was generally foreseeable
that such condition would occur and that someone would be injured as a result. Lastly,
unlike the unexpected blow-ups at issue in Knickel, the accumulation of water on the
roadway during a period of heavy rainfall is a known hazard that motorists are expected
to anticipate and to guard against even if it is not open and obvious.
       {¶ 22} In the final analysis, plaintiff has pointed to no case law other than Knickel
in which the proposition of liability based upon general notice has been recognized or
followed. Accordingly, the court concludes that ODOT cannot be held liable on such
basis in this case.
       {¶ 23} Plaintiff next contends that ODOT had actual or, at the least, constructive
notice based upon Marszal’s observations of water accumulations in the area of the
accident and the unusual amount of damage to the nearby guardrail. Plaintiff argues
that, although it was not part of his employment responsibilities, Marszal’s actual
knowledge of the roadway conditions can be imputed to ODOT inasmuch as his
engineering experience and employment history were highly respected, and ODOT
maintenance employees responded to his requests whether or not they were obligated
to do so. In the alternative, plaintiff argues that ODOT had constructive knowledge of
the roadway conditions based upon the fact that, if Marszal observed such conditions,
then the employees who were specifically charged with the responsibility of traveling the
area and searching for potential hazards or maintenance issues should also have been
aware of any clogged basins, unnatural accumulations of water, and the increased
incidence of guardrail damage.
       {¶ 24} Upon review, the court finds that plaintiff failed to prove that, prior to the
time of Violet’s accident, ODOT had either actual or constructive knowledge of any
clogging of the catch basins at issue, that any such clogging was contributing to an
unnatural accumulation of water at or near the I-480/I-77 interchange, or that
maintenance or repair work was required in that area. The totality of the evidence
simply fails to establish the condition of the catch basins at the time of the accident.
Even assuming that Marszal’s e-mail to Holloway and Jung had been recovered,
Marszal testified quite credibly that he requested only that the catch basins be cleaned
out “if necessary”; he recalled no specifics as to how much debris or clogging he had
observed. There was no evidence as to the cause of the increased guardrail damage or
whether it had any connection to the occurrence of accumulations of water on the
roadway. Furthermore, the court is not persuaded by the testimony of plaintiff’s expert,
who based his opinions upon blockages he observed when he viewed the catch basins
approximately four and one-half years after the accident. The court cannot infer from
such evidence, even coupled with Marszal’s observations, that clogging existed prior to
the accident to the extent that it would have caused excess water on the roadway, or
that such condition existed for a sufficient length of time that ODOT should have, in the
exercise of reasonable care, been on notice to correct it.
       {¶ 25} Moreover, the evidence established that the I-480 roadway in the area of
the accident had an uphill grade, that it had a crowned configuration, and that such
characteristics were intended to cause water to flow away from the traveling lanes and
into both the ditches and catch basins along the sides of pavement. The local police
officer who investigated the accident noted no unusual accumulation of water when he
arrived at the scene, and testified that he was not aware of any previous complaint of
unnatural standing or pooling of water in the area. Marszal also testified that, although
the water that he observed was not necessarily an open and obvious danger to
motorists, he had always been able to pass through the area safely. Similarly, the
witnesses who observed the accident, and who were following closely behind Violet,
passed through the area without incident.
       {¶ 26} The common law of Ohio imposes a duty of reasonable care upon
motorists that includes the responsibility to observe the environment in which one is
driving. See, e.g., Hubner v. Sigall (1988), 47 Ohio App.3d 15, 17. The weight of the
evidence establishes that Violet’s own negligence in failing to control her vehicle was
the sole proximate cause of her injuries.
       {¶ 27} Plaintiff has also argued that ODOT was negligent in failing to implement
the catch basin maintenance program that it had developed and approved. Given the
finding that Violet’s own negligence was the sole proximate cause of the accident,
plaintiff’s arguments in this regard are moot. However, even assuming that such was
not the case, it is well established that “[t]he state cannot be sued for its legislative or
judicial functions or the exercise of an executive or planning function involving the
making of a basic policy decision which is characterized by the exercise of a high
degree of official judgment or discretion.” Reynolds v. State (1984), 14 Ohio St.3d 68,
70; Pottenger v. Ohio Dept. of Transp. (Dec. 7, 1989), Franklin App. No. 88AP-832.
ODOT’s decision as to whether to implement a particular program, or how to best utilize
its resources to maintain District 12’s catch basins is clearly a policy decision of such
nature. The court concludes that ODOT is entitled to discretionary immunity for its
decisions surrounding the implementation of the proposed catch basin maintenance
program.
       {¶ 28} Finally, throughout the proceedings, and at the close of all of the evidence,
the court entertained plaintiff’s claim of spoliation of evidence. The claim concerns a
partially blocked drain pipe that led from one of the two catch basins in question. The
condition was discovered by plaintiff’s expert almost five years after the occurrence.
The evidence is clear that only part of the drain pipe was removed from the area; the
part closest to the catch basin along the I-480 ramp. Samples of the blockage were
preserved and made available to plaintiff’s counsel, but plaintiff’s counsel never
collected or tested the samples to determine their content.
       {¶ 29} The elements of a claim for interference with or destruction of evidence
are: “(1) pending or probable litigation involving the plaintiff, (2) knowledge on the part
of defendant that litigation exists or is probable, (3) willful destruction of evidence by
defendant designed to disrupt the plaintiff’s case, (4) disruption of the plaintiff’s case,
and (5) damages proximately caused by the defendant's acts[.]” Smith v. Howard
Johnson Co., Inc., 67 Ohio St.3d 28, 29, 1993-Ohio-229.
       {¶ 30} In this case, given the finding that Violet’s own negligence was the sole
proximate cause of the accident, and considering the abundance of other evidence that
plaintiff obtained and presented, it cannot be said that plaintiff was prejudiced or that his
case was disrupted. Further, the court is not convinced that the removal of the portion
of the drain pipe was “willful” in the sense that there was “an intentional and wrongful
commission of the act.” See White v. Ford Motor Co. (2001), 142 Ohio App.3d 384,
387. Accordingly, plaintiff’s spoliation claim is DENIED.
       {¶ 31} In summary, the court finds that plaintiff failed to prove his claims of
negligence and spoliation by a preponderance of the evidence. Therefore, the
derivative claim for loss of consortium also must fail. See Bowen v. Kil-Kare, Inc.
(1992), 63 Ohio St.3d 84, 93. Judgment shall be entered in favor of defendant.
                                             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




MICHAEL TOWNSEND, Guardian, etc.

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant
      Case No. 2008-11044

Judge Joseph T. Clark

JUDGMENT ENTRY




      This case was tried to the court on the issue of liability.           The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of defendant. Court costs are assessed against
plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.



                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge

cc:
Anthony S. Farren                 Christopher P. Conomy
Murray D. Bilfield                William C. Becker
6300 Rockside Road, Suite 204     Assistant Attorneys General
Independence, Ohio 44131          150 East Gay Street, 18th Floor
                                  Columbus, Ohio 43215-3130

Robert E. Epstein
2421 Allen Boulevard
Beachwood, Ohio 44122

LH/cmd
Filed July 7, 2011
To S.C. reporter August 2, 2011
