[Cite as Caruthers v. Univ. of Akron, 2010-Ohio-5903.]

                                                         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




ROBERT TODD CARUTHERS

       Plaintiff

       v.

UNIVERSITY OF AKRON

       Defendant
       Case No. 2009-06141-AD

Judge Clark B. Weaver Sr.

ENTRY REVERSING ADMINISTRATIVE DETERMINATION




        {¶ 1} This case came to be heard by the court upon defendant’s motion for
court review of the clerk’s determination pursuant to R.C. 2743.10(D). On November
10, 2009, the deputy clerk issued an order compensating plaintiff for damages caused
to his vehicle when it was struck by a malfunctioning traffic gate arm while he was
attempting to exit a parking lot on defendant’s campus. The deputy clerk found that the
traffic gate and the mechanism which operated it were under the exclusive control of
defendant, and that defendant was therefore liable for any malfunction that caused
damage.
        {¶ 2} On December 10, 2009, defendant filed its motion for court review. In the
motion, defendant asserts that the deputy clerk applied the incorrect legal standard.
        {¶ 3} In order for plaintiff to prevail upon his claim of negligence, he must prove
by a preponderance of the evidence that defendant owed him a duty, that defendant’s
acts or omissions resulted in a breach of that duty, and that the breach proximately
caused his injuries. 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.
Case No. 2009-06141-AD                     -2-                                    ENTRY

       {¶ 4} “In premises liability situations, the duty owed by a landowner to
individuals visiting the property is determined by the relationship between the parties.”
Chovan v. Dehoff Agency, Inc., Stark App. No. 2009 CA 00114, 2010-Ohio-1646, ¶19,
citing Light v. Ohio University (1986), 28 Ohio St.3d 66.         “[B]usiness invitees are
persons who come upon the premises of another, by invitation, express or implied, for
some purpose which is beneficial to the owner.” Light at 68. Plaintiff established that
he used a “key card” to activate the gate arm, that the arm then raised, and as he
started to drive out of the parking lot the gate arm descended, striking his vehicle.
       {¶ 5} The court finds that plaintiff had the status of an invitee, and, accordingly,
that defendant owed him a duty to exercise reasonable care in keeping the premises in
a safe condition and warning him of any latent or concealed dangers of which defendant
had knowledge. Perry v. Eastgreen Realty Company (1978), 53 Ohio St.2d 51, 52-53;
Presley v. Norwood (1973), 36 Ohio St.2d 29, 31; Sweet v. Clare-Mar Corp., Inc.
(1987), 38 Ohio App.3d 6.
       {¶ 6} Plaintiff bears the burden of proof to demonstrate that defendant had
notice, either actual or constructive, of a hazard. Williams v. Ohio Dept. of Rehab. &
Corr. (1991), 61 Ohio Misc.2d 699, 702-703.          The distinction between actual and
constructive notice is in the manner in which notice is obtained rather than in the
amount of information obtained.      Whenever the trier of fact is entitled to find from
competent evidence that information was personally communicated to or received by
the party, the notice is actual. Constructive notice is that notice which the law regards
as sufficient to give notice and is regarded as a substitute for actual notice. In re Estate
of Fahle (1950), 90 Ohio App. 195, 197.
       {¶ 7} In the memorandum decision, the deputy clerk noted that plaintiff had
provided evidence that two other individuals sustained damage to their vehicles from
malfunctioning gate arms at parking lots located on defendant’s premises: one incident
occurred on July 17, 2009, another on July 21, 2009.          However, plaintiff’s incident
Case No. 2009-06141-AD                       -3-                                    ENTRY

occurred on June 18, 2009, prior to the other occurrences.              Therefore, the other
incidents cannot be used to establish notice of the defective gate arm.
       {¶ 8} The doctrine of res ipsa loquitur is a rule of evidence that permits plaintiff
to prove negligence circumstantially upon showing that:           1) the instrumentality that
caused the harm was in the exclusive control of defendant; and 2) the event that caused
the harm was not of the type that would normally occur in the absence of negligence.
Wiley v. Gibson (1990), 70 Ohio App.3d 463.
       {¶ 9} Upon careful consideration of the material contained in the case file and
the decision of the deputy clerk, the court finds that there is substantial error in the
decision. Specifically, the deputy clerk’s finding on page 4 of the memorandum decision
that “[t]he traffic gate and the mechanism which governs it is under the exclusive control
of defendant” and, “[t]hus, defendant will be liable for any malfunction which causes
damage” is not supported by the evidence. The court finds that the doctrine of res ipsa
loquitur is inapplicable because the traffic gate arm was not under the exclusive control
of defendant; rather, it was located in an outdoor parking lot where it could be affected
by conditions such as adverse weather or vandalism. In addition, the event that caused
the harm to plaintiff’s vehicle could occur in the absence of defendant’s negligence.
Indeed, a computer malfunction or other product defect would implicate the product
manufacturer rather than defendant.        See Sant v. Hines Interests Ltd. Partnership,
Franklin App. No. 05AP-586, 2005-Ohio-6640. Defendant established by affidavit that
it had no record of any complaints regarding the traffic gate arm malfunctioning prior to
plaintiff’s incident.   Therefore, the court finds that plaintiff failed to prove by a
preponderance of the evidence that defendant had actual or constructive notice of a
defect in the traffic gate arm prior to the arm striking his vehicle.
       {¶ 10} Accordingly, defendant’s motion for court review is GRANTED.               The
November 10, 2009 order of the deputy clerk granting plaintiff’s claim is VACATED.
Judgment is rendered in favor of defendant. Pursuant to R.C. 2743.10(D), no further
appeal may be taken from this judgment. Court costs are absorbed by the court.
Case No. 2009-06141-AD               -4-                                ENTRY




                                    _____________________________________
                                    CLARK B. WEAVER SR.
                                    Judge

cc:


Robert Todd Caruthers                 M. Celeste Cook
1643 11th Street                      Associate Vice President
Cuyahoga Falls, Ohio 44221             and Assistant Attorney General
                                      302 Buchtel Mall
                                      Akron, Ohio 44325-4706
HTS/cmd
Filed November 5, 2010
To S.C. reporter December 1, 2010
