[Cite as Kinsey v. Ohio Dept. of Transp., Dist. 11, 2011-Ohio-4591.]



                                       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




BROC KINSEY

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 11

        Defendant

        Case No. 2011-02964-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION

                                           FINDINGS OF FACT

     {¶1}        On January 25, 2011, Broc Kinsey was driving a 1999 Honda CR-V on
State Route 36 when the vehicle struck a dislodged survey monument in the traveled
portion of the roadway. As a result of striking the monument, the 1999 Honda CR-V
received tire and rim damage. According to the Ohio State Highway Patrol report, this
automobile is owned by Lorin E. Kinsey.
     {¶2}        Plaintiff has asserted that defendant, Department of Transportation,
should bear liability for the damage to the automobile. Consequently, plaintiff filed this
complaint seeking to recover $355.74 for replacement of two tires and a rim.                       The
$25.00 filing fee was paid.
     {¶3}        Defendant denied any liability in this matter.          Defendant located the
incident at “milepost 15.7 on US 36 in Tuscarawas County.” Defendant denied having
any knowledge of a loosened or displaced monument on U.S. Route 36 prior to
plaintiff’s January 25, 2011 incident. Defendant related that, “[t]his section of roadway
has an average daily traffic count” of over 7,000 vehicles. Defendant asserted that
plaintiff did not offer any evidence to establish the length of time that debris was in the
roadway prior to this incident.


    {¶4}      Additionally, defendant contended that plaintiff did not offer any evidence
to prove that the roadway was negligently maintained. Defendant advised that the
ODOT “Tuscarawas County Manager conducts roadway inspections on all state
roadways within the county on a routine basis, at least one to two times a month.”
Apparently, no loosened or dislodged monuments were discovered in the vicinity of
milepost 15.7 the last time that section of roadway was inspected prior to January 25,
2011. Defendant argued that plaintiff has failed to offer any evidence to prove that his
property damage was attributable to any conduct on the part of ODOT personnel.
Defendant stated that, “[a] review of the six-month maintenance history [record
submitted] for the area in question reveals that ten (10) maintenance operations were
done in the general vicinity of plaintiff’s incident.” In addition defendant pointed out
there was “a crew doing Ground-Mounted Flatsheet Sign Maintenance on January 13,
2011.” Defendant noted, “that if ODOT personnel had detected any defects they would
have been promptly scheduled for repair.”
    {¶5}      Plaintiff filed a response wherein he asserted the state should be
responsible for the damage to the vehicle.
                                  CONCLUSIONS OF LAW
       {¶6}   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 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. 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.
      {¶7}      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.
      {¶8}      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.
      {¶9}      Generally, in order to recover in a suit involving damage proximately
caused by roadway conditions including debris, plaintiff must prove that either:        1)
defendant had actual or constructive notice of the defect 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 submitted any evidence to establish that ODOT
had actual notice of the survey monument prior to plaintiff’s incident. Therefore, in order
to recover plaintiff must produce evidence to prove constructive notice of the defect or
negligent maintenance.
      {¶10} “[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, 47 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.
      {¶11} The trier of fact is precluded from making an inference of defendant’s
constructive notice, unless evidence is presented in respect to the time the defective
condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d
262, 577 N.E. 2d 458.
       {¶12} In order for there to be constructive notice, plaintiff must show 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. “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. No evidence has
shown that ODOT had constructive notice of the survey monument.
       {¶13} Plaintiff has not produced sufficient 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.
Therefore, defendant is not liable for any damage plaintiff may have suffered from the
survey monument. In the instant claim, plaintiff has failed to introduce sufficient
evidence to prove that defendant maintained known hazardous roadway conditions or
that defendant was negligent in maintaining the roadway area. Taylor v. Transportation
Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-
10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD.
Consequently, plaintiff’s claim is denied.
                                 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




BROC KINSEY

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 11

        Defendant

         Case No. 2011-02964-AD

Clerk Miles C. Durfey


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.



                                                  ________________________________
                                                  MILES C. DURFEY
                                                  Clerk

Entry cc:

Broc Kinsey                                       Jerry Wray, Director
7892 N. Walnut Street Ext. S.E.                   Department of Transportation
Gnadenhutten, Ohio 44629                          1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
5/12
Filed 6/1/11
Sent to S.C. reporter 9/12/11
