[Cite as Platt v. Ohio Dept. of Transp., Dist. 12, 2011-Ohio-3536.]

                                        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




CHARLES JASON PLATT

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION, DIST. 12

        Defendant

        Case No. 2010-11447-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Charles Platt, filed this action against defendant, Ohio
Department of Transportation (ODOT), contending his 2005 Ford Focus was damaged
as a proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 71 in Cuyahoga County. Specifically, plaintiff asserted the tire,
rim, lugnuts, and wheel alignment on his car were damaged when the vehicle struck a
piece of wood in the traveled portion of the roadway. Plaintiff described his damage
incident occurred in the following manner, “after we passed the West 150th exit I hit a 4
X 4 that was lying in the middle of the freeway.” Plaintiff recalled his damage event
occurred on May 7, 2010, at approximately 9:00 p.m.                   In his complaint, plaintiff
requested damages in the amount of $390.80, the total cost of replacement parts and
related expense associated with having his car repaired. The $25.00 filing fee was paid
and plaintiff requested reimbursement of that cost along with his damage claim.
        {¶ 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 240.6 on I-71 in Cuyahoga County
and advised ODOT did not receive any calls or complaints for debris at that location
despite the fact the particular “section of roadway has an average daily traffic count
between 94,750 and 98,330 vehicles.” Defendant suggested, “that the debris existed in
that location for only a relatively short amount of time before plaintiff’s incident.”
Defendant asserted plaintiff failed to establish the length of time the debris existed on
the roadway prior to his property damage event.          Defendant insisted no ODOT
personnel had any knowledge of a wooden object at milepost 240.6 on I-71 prior to the
described incident forming the basis of this claim. Defendant contended plaintiff failed
to establish the damage-causing debris condition was attributable to any conduct on the
part of ODOT. Defendant related the ODOT “Cuyahoga 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 240.6 on
I-71 the last time that section of roadway was inspected before May 7, 2010. The claim
file is devoid of any inspection record. Defendant did submit a six-month maintenance
history of the specific roadway area in question which recorded thirty-nine litter patrol
operations were performed in the relevant area of I-71 during the time frame covered.
According to the submitted maintenance history, the last time ODOT personnel were
working in the area was on May 5, 2010, when litter was removed from the area.
Defendant stated “if ODOT personnel had found any debris it would have been picked
up.” Defendant argued plaintiff failed to produce evidence to show his property damage
was proximately caused by negligent maintenance on the part of ODOT.
      {¶ 3} 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.
      {¶ 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.
      {¶ 6} Defendant professed liability cannot be established when requisite notice
of the damage-causing conditions cannot be proven. However, proof of notice of a
dangerous condition is not necessary when defendant’s own agents actively caused
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. Plaintiff has failed to produce any evidence to prove that his property damage
was caused by a defective condition created by ODOT or that defendant knew about
the particular debris condition prior to 9:00 p.m. on May 7, 2010.
      {¶ 7} Ordinarily, 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 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. Plaintiff has not provided any evidence to prove that ODOT had
actual notice of the damage-causing condition. Therefore, in order to recover plaintiff
must offer proof of defendant’s constructive notice of the condition as evidence to
establish negligent maintenance.
      {¶ 8} “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of
Fahle (1950), 90 Ohio App. 195, 197-198, 48 O.O. 231, 105 N.E. 2d 429. “A finding of
constructive notice is a determination the court must make on the fact of each case not
simply by applying a pre-set time standard for the discovery of certain road hazards.”
Bussard, at 4.     “Obviously, the requisite length of time sufficient to constitute
constructive notice varies with each specific situation.” Danko v. Ohio Dept. of Transp.
(Feb. 4, 1993), Franklin App. 92AP-1183.        In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, that
sufficient time has elapsed after the dangerous condition appears, so that under the
circumstances defendant should have acquired knowledge of its existence. Guiher v.
Dept. of Transportation (1978), 78-0126-AD; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
      {¶ 9} Plaintiff has not produced any evidence to indicate the length of time that
the wooden debris was present on the roadway prior to the incident forming the basis of
this claim. Plaintiff has not shown that defendant had actual notice of the condition.
Also, 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 wooden 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 on the roadway.
      {¶ 10} 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 or conditions. Herlihy v. Ohio Department of Transportation (1999), 99-07011-
AD.
      {¶ 11} Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to plaintiff, or that plaintiff’s injury was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing object at the time of the damage incident was connected to any conduct under
the control of defendant or any negligence on the part of defendant proximately caused
the damage. Herman v. Ohio Dept. of Transp. (2006), 2006-05730-AD; Husak v. Ohio
Dept. of Transp., Ct. of Cl. No. 2008-03963-AD, 2008-Ohio-5179.
                                  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




CHARLES JASON PLATT

          Plaintiff

          v.

OHIO DEPT. OF TRANSPORTATION, DISTRICT 12

          Defendant

          Case No. 2010-11447-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:

Charles Jason Platt                                Jerry Wray, Director
9321 Albion Road                                   Department of Transportation
North Royalton, Ohio 44133                         1980 West Broad Street
                                                   Columbus, Ohio 43223

SJM/laa
3/17
Filed 4/5/11
Sent to S.C. reporter 7/8/11
