[Cite as Atkins v. Dept. of Transp., 2010-Ohio-3934.]

                                       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




RICHARD E. ATKINS

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2009-09426-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Richard E. Atkins, asserted his 1994 Ford Mustang was damaged
when the vehicle struck “a six foot wood 4" X 4" timber” while traveling north on
Interstate 75 “2/10 mile south of Harrison Ave. exit” in Hamilton County.               Plaintiff
recalled the damage incident occurred on October 29, 2009 at approximately 4:10 a.m.
        {¶ 2} Plaintiff contended the damage to his car was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in failing to
maintain the highway free of hazardous debris.          Consequently, plaintiff filed this
complaint seeking to recover $719.67, the stated cost of replacement parts and related
repair expense. The filing fee was paid.
        {¶ 3} Defendant conducted an investigation and determined the damage-
causing incident occurred at state milepost 2.20 on Interstate 75 in Hamilton County.
Defendant asserts that it had no “notice of the debris on I-75 prior to” the damage-
causing incident. Defendant, “believes that the debris existed in that location for only a
relatively short amount of time before plaintiff’s incident.” Defendant asserted plaintiff
failed to produce any evidence to establish the length of time the debris condition
existed prior to 4:10 a.m. on October 29, 2009. Defendant also asserted plaintiff did not
offer evidence to show the damage-causing debris condition was attributable to any
conduct on the part of ODOT.
      {¶ 4} Defendant pointed out that ODOT’s “Hamilton 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 debris was discovered at milepost 2.20 on
Interstate 75 the last time that specific section of roadway was inspected prior to
October 29, 2009. Defendant reviewed a six-month maintenance history of the area in
question and found twenty-nine litter patrols were performed, the last being on October
19, 2009, ten days before plaintiff’s incident, and according to defendant any debris
found would have been picked up.
      {¶ 5} 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. Defendant professed liability cannot be
established when requisite notice of the damage-causing conditions cannot be proven.
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. However, proof of a dangerous condition is not necessary when
defendant’s own agents actively cause such condition. See Bello v. City of Cleveland
(1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the syllabus. Plaintiff has
failed to produce sufficient evidence to prove his property damage was caused by a
defective condition created by ODOT.
      {¶ 6} Generally, in order to recover in any suit involving injury proximately
caused by roadway conditions including debris, plaintiff must prove either: 1) defendant
had actual or constructive notice of the debris 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 produced any evidence to indicate the length of time the
debris condition was present on the roadway prior to the incident forming the basis of
this claim. No evidence has been submitted to show defendant had actual notice of the
debris.    Additionally, 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
debris appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458. There is no indication defendant had constructive
notice of the debris. Plaintiff has not produced any evidence to infer 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.




                              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




RICHARD E. ATKINS

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant
         Case No. 2009-09426-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:

Richard E. Atkins                                 Jolene M. Molitoris, Director
7826 Bridge Point Drive                           Department of Transportation
Cincinnati, Ohio 45248                            1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
3/30
Filed 4/15/10
Sent to S.C. reporter 8/20/10
