[Cite as Shank v. Ohio Dept. of Transp., Dist. 12, 2011-Ohio-1117.]

                                       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




COLLEEN SHANK

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

        Defendant

        Case No. 2010-09141-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Colleen Shank, filed this action against defendant, Department of
Transportation (ODOT), contending the sunroof on her car was damaged as a
proximate cause of negligence on the part of ODOT in maintaining an overpass bridge
spanning Interstate 480 East in Cuyahoga County. In her complaint, plaintiff described
her damage incident noting she was traveling east on Interstate 480 on June 1, 2010
when, “an object fell from the overpass right before the Ridge Rd. exit as I was passing
under the overpass the object hit the center of my sunroof,” shattering the glass.
Plaintiff submitted photographs depicting                the damaged sunroof.     The photographs
depict damage consistent with an object falling and striking the sunroof. Plaintiff did not
identify the origin of the object that damaged her vehicle. From information provided in
the complaint it is uncertain whether the damage-causing object was part of the
overpass bridge structure which had spalled or had some other origin. The damage-
causing object was never recovered.                  Plaintiff requested damage recovery in the
amount of $323.25, the cost of a replacement sunroof. The filing fee was paid.
        {¶ 2} Defendant conducted an investigation and determined the damage-
causing incident occurred at the Idlewood Drive overpass spanning Interstate 480 which
corresponds to state milepost 14.87 in Cuyahoga County. Defendant contended ODOT
“did not have notice of any problems with the overpass, and there is no evidence the
debris actually came from the overpass.” Defendant denied receiving any calls or
complaints regarding “falling debris” at or near milepost 14.87 prior to June 1, 2010.
Defendant asserted the particular section of roadway was well patrolled and no
problems were discovered with the Idlewood Drive overpass spanning Interstate 480 in
Cuyahoga County. Defendant further asserted plaintiff did not offer evidence to show
the damage-causing debris condition was attributable to any conduct on the part of
ODOT. Defendant advised the overpass at milepost 14.87 was inspected on May 19,
2009 and the submitted “Bridge Inspection Report” refers to “a very small percentage of
spalling or delaminations” on the bridge deck structure. The “Bridge Inspection Report”
references spalls and delaminations on the bridge deck with the bridge floor showing 5-
10% deterioration.      Spalling and delamanination were also observed on the
substructure of the bridge as well as on the bridge approaches. Defendant argued, “the
evidence suggests the damage was not caused by debris from the bridge.” Apparently,
the particular overpass bridge was not inspected at any time from May 20, 2010 to June
1, 2010.
      {¶ 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 a reasonable 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.
      {¶ 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} 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.     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. However, proof of notice of a dangerous condition is
not necessary when defendant’s own personnel passively or 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; Sexton v. Ohio Department of Transportation (1996), 94-
13861.
      {¶ 6} Ordinarily, in a claim involving roadway defects, plaintiff must prove that
either: 1) defendant had actual or constructive notice of the defective condition 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. The evidence is inconclusive to establish that
plaintiff’s damage was proximately caused by negligent bridge maintenance or that the
damage-causing debris was part of a spall condition.
      {¶ 7} “If an injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in light of all the attending circumstances,
the injury is then the proximate result of negligence.     It is not necessary that the
defendant should have anticipated the particular injury. It is sufficient that his act is
likely to result in an injury to someone.” Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d
155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber Co. v. First National Bank
of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E. 327.
      {¶ 8} This court has previously held ODOT liable for property damage resulting
from falling debris. Elsey v. Dept. of Transportation (1989), 89-05775-AD. Plaintiff has
failed to prove her property damage was proximately caused by debris emanating from
the Idlewild Drive overpass or any ODOT maintenance activity. Plaintiff has failed to
produce sufficient evidence to prove her property damage was caused by any known
debris condition. Consequently, plaintiff failed to prove her damage was attributable to
any negligent act or omission on the part of ODOT or its agents. See Wachs v. Dept. of
Transp., Dist. 12, Ct. of Cl. No. 2005-09481-AD, 2006-Ohio-7162; Vanderson v. Ohio
Dept. of Transp., Ct. of Cl. No. 2005-09961-AD, 2006-Ohio-7163; Shiffler v. Ohio Dept.
of Transp., Ct. of Cl. No. 2007-07183-AD, 2008-Ohio-1600.




                               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




COLLEEN SHANK

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

      Defendant

      Case No. 2010-09141-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:

Colleen Shank                                     Jolene M. Molitoris, Director
19846 Henry Road                                  Department of Transportation
Fairview Park, Ohio 44126                         1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
12/2
Filed 1/11/11
Sent to S.C. reporter 3/4/11
