[Cite as Paul v. Ohio Dept. of Transp., 2015-Ohio-4857.]




                              IN THE COURT OF CLAIMS OF OHIO



DHARAM PAUL

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2015-00025-AD

Clerk Mark H. Reed

MEMORANDUM DECISION



        {¶1} Plaintiff Dharam Paul filed this claim on January 13, 2015 to recover
damages which occurred on November 13, 2014 when plaintiff’s 1999 Honda Accord
struck a truck tire and rim that was lying in the roadway, while traveling on I-480 West in
Cuyahoga County, Ohio. This road is a public road maintained by the Ohio Department
of Transportation. Plaintiff’s vehicle, which was struck on the bottom by this object,
sustained damages in the amount of $1,190.91.
        {¶2} In order to recover on a claim for roadway damages against the Ohio
Department of Transportation, Ohio law requires that a motorist/plaintiff prove all of the
following:
        {¶3} That the plaintiff’s motor vehicle received damages as a result of coming
into contact with a dangerous condition on a road maintained by the defendant.
        {¶4} That the defendant knew or should have known about the dangerous road
condition.
        {¶5} That the defendant, armed with this knowledge, failed to repair or remedy
the dangerous condition in a reasonable time.
        {¶6} In this claim, the court finds that the plaintiff did prove that plaintiff’s vehicle
received damages and that those damages occurred as a result of the plaintiff’s vehicle
Case No. 2015-00025-AD                      -2-              MEMORANDUM DECISION


coming into contact with a dangerous condition on a road maintained by the defendant.
       {¶7} The next element that a plaintiff must prove to succeed on a claim such as
this is to show that the defendant knew or should have known about this dangerous
condition.
       {¶8} Based on the evidence presented, the court is unable to find that the
defendant had actual knowledge of the dangerous condition. Likewise, the court is
unable to find that the defendant should have known about this dangerous condition
and thus would have had constructive notice about the highway danger. Constructive
notice is defined as “(n)otice arising from the presumption of law from the existence of
facts and circumstances that a party has a duty to take notice of…Notice presumed by
law to have been acquired by a person and thus imputed to that person.” (Black’s Law
Dictionary at 1090 8th Ed. 2004.)
       {¶9} In order for there to be constructive notice a plaintiff must prove that
sufficient time has passed after the dangerous condition first appears, so that under the
circumstances the defendant should have gained knowledge of its existence. This the
plaintiff has been unable to do.
       {¶10} In the investigation report filed March 12, 2015, the defendant stated that
the location of the accident was on IR 480 in Cuyahoga County located between
Milepost 13.5 and 14.5. This section of the roadway has an average daily traffic count of
between 114,680 and 125,280 vehicles. Despite this volume of traffic, the department
had received no notice of a truck tire or other road debris on this road thus, the court is
unable to find that the department knew about this road debris. Within the past six
months, the department had also conducted over three hundred fifty (350) maintenance
operations on IR 480 in Cuyahoga County without discovering any debris. If this truck
tire or road debris had existed for any appreciable length of time on the roadway, it is
probable that it would likely have been discovered by the department’s work crews.
Thus, the court cannot find that the department should have known about this road
debris. It is thus likely that the tire and rim had only recently traveled into the roadway
Case No. 2015-00025-AD                       -3-                 MEMORANDUM DECISION

and that ODOT had not been notified regarding this hazard.
       {¶11} Finally, it must be pointed out that under Ohio law, the burden of proof in
civil claims like this one rests on the plaintiff. Admittedly, this places a difficult task on a
plaintiff in a loose road debris claim against ODOT. However, this is the law that is
binding on this court at the present time.
       {¶12} Further, the law in Ohio is that the department is not an absolute insurer of
a motorist’s safety on the highway. The department is only liable for damage when the
court finds that it was negligent. This the court is unable to do.
       {¶13} Since the plaintiff is unable to prove that the defendant knew or should
have known about this dangerous condition, the claim must fail.




       IN THE COURT OF CLAIMS OF OHIO



DHARAM PAUL

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

Case No. 2015-00025-AD

Clerk Mark H. Reed

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.
Case No. 2015-00025-AD           -4-              MEMORANDUM DECISION




                                       ________________________________
                                       MARK H. REED
                                       Clerk

Entry cc:

Dharam Paul                            Jerry Wray, Director
10580 Fairlawn Drive                   Ohio Department of Transportation
Parma, Ohio 44130                      1980 West Broad Street
                                       Mail Stop 1500
                                       Columbus, Ohio 43223


Filed 5/7/15
Sent to S.C. Reporter 11/24/15
