[Cite as Hernandez v. Ohio Dept. of Transp.-Dist. 8, 2011-Ohio-6983.]



                                      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
JENNIFER HERNANDEZ

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION-DISTRICT 8

       Defendant

Case No. 2011-08385-AD

Deputy Clerk Daniel R. Borchert

                                     MEMORANDUM DECISION

        {¶1}     In her complaint, plaintiff, Jennifer Hernandez, stated that on October 15,
2010, at approximately 2:45 p.m. she was traveling south on Interstate 71 “right before
the Reagan highway exit, when the car in front of me ran over a block of what I believe
was wood. This piece then hit my drivers side mirror knocking off the plastic housing
and popping the mirror off.” The propelled object also caused a scratch on the driver’s
side door below the mirror. Plaintiff implied that the damage to the automobile was
proximately caused by negligence on the part of defendant, Department of
Transportation (ODOT), in failing to maintain the roadway free of hazardous debris
conditions. Plaintiff filed this complaint seeking to recover $92.56, which represents the
total cost of related expense associated with having her car repaired. The $25.00 filing
fee was paid.
        {¶2}     Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the damage-causing debris condition prior to plaintiff’s
incident. Defendant located the debris at milepost 14.13 on I-71 in Hamilton County.
Defendant asserted plaintiff failed to establish the length of time the debris existed on
the roadway prior to her property-damage event. Defendant suggested, “that the debris
existed in that location for only a relatively short amount of time before plaintiff’s
incident.” Defendant contended plaintiff failed to establish the damage-causing debris
condition was attributable to any conduct on the part of ODOT. Plaintiff did not file a
response.
       {¶3}    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.
       {¶4}    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.
       {¶5}    Alternatively, defendant denied that ODOT maintained its roadways
negligently. Ordinarily 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.    Plaintiff provided insufficient evidence to show that any ODOT
activity caused the debris condition.
       {¶6}    Generally, in order to recover in any suit involving injury proximately
caused by roadway conditions including debris, plaintiff must prove that 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 that the debris was present on the roadway prior to the incident forming the basis
of this claim. 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 that
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 that defendant had
constructive notice of the debris.
       {¶7}   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
debris to be on the roadway. Herlihy v. Ohio Department of Transportation (1999), 99-
07011-AD.
       {¶8}   In her complaint, plaintiff acknowledged the debris plaintiff’s car struck
was displaced by a third party, another motorist. Defendant has denied liability based
on the particular premise it had no duty to control the conduct of a third person except in
cases where a special relationship exists between defendant and either plaintiff or the
person whose conduct needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin
Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769, Jordan v. Ohio Dept. of
Transp., Dist. 8, Ct. of Cl. No. 2010-01336-AD, 2010-Ohio-4583. However, defendant
may still bear liability if it can be established some act or omission on the part of ODOT
was the proximate cause of plaintiff’s injury.     No evidence has been presented to
establish the damage claimed was proximately caused by any act or omission on the
part of ODOT. Consequently, plaintiff’s claim shall be 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

JENNIFER HERNANDEZ

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION-DISTRICT 8

        Defendant

Case No. 2011-08385-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:

Jennifer Hernandez                                Jerry Wray, Director
7495 Winchester Lane, B                           Department of Transportation
Maineville, Ohio 45039                            1980 West Broad Street
                                                  Columbus, Ohio 43223



9/15
Filed 9/28/11
Sent to S.C. reporter 2/6/12
