[Cite as Curtis v. Ohio Dept. of Transp., 2009-Ohio-7150.]

                                       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




KIMBERLY E. CURTIS

        Plaintiff

        v.

OHIO DPT. OF TRANSPORTATION

        Defendant

        Case No. 2009-06443-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On July 10, 2009, at approximately 10:30 a.m., plaintiff, Kimberly E.
Curtis, was traveling west on Interstate 70 “between the Mound St exit and Sullivant Rd
exit” in Franklin County, when her 2007 Chevrolet Cobalt struck a large piece of
dislodged pavement material causing substantial damage to her car. Plaintiff provided
the following written description of her damage incident noting: “[t]he vehicle in front of
me somehow pulled a rock loose in the pavement. I couldn’t stop or swerve in time to
miss it. The rock was huge and I ran over it. It hit down the center of my car and
actually lifted the car off the ground.” Plaintiff asserted the damage to her automobile
was proximately caused by negligence on the part of defendant, Department of
Transportation (ODOT), in failing to maintain the roadway free of defects, such as the
dislodged pavement condition. Plaintiff filed this complaint seeking to recover $500.00,
her insurance coverage deductible for automotive repair. The filing fee was paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of a debris condition between “state mileposts
98.06 and 97.86 on I-70 in Franklin County” prior to plaintiff’s property damage event.
Defendant suggested “the debris existed in that location for only a relatively short
amount of time before plaintiff’s incident.” Plaintiff, in her complaint, confirmed the fact
the damage-causing debris condition existed seconds before her incident considering
she stated the car traveling in front of her dislodged the pavement material that her car
then ran over.
       {¶ 3} Defendant contended plaintiff did not produce sufficient evidence to
establish her property damage was attributable to any conduct on the part of ODOT.
Defendant pointed out plaintiff acknowledged an unidentified third party motorist
dislodged the pavement material that ultimately damaged her car. Defendant asserted
ODOT cannot be held liable for the acts of an unidentified third party.          Defendant
argued plaintiff has failed to prove her damage was proximately caused by ODOT
breaching any duty of care owed to her in regard to roadway maintenance. Defendant
advised the ODOT “Franklin County Manager conducts roadway inspections on all state
roadways on a routine basis, at least one to two times a month.”            Apparently, no
problems were detected regarding pavement conditions between mileposts 98.06 and
97.86 on Interstate 70 the last time that section of roadway was inspected prior to July
10, 2009.   Defendant’s records show ODOT personnel conducted pothole patching
operations in the vicinity of plaintiff’s incident on February 5, 2009, February 6, 2009,
February 20, 2009, February 22, 2009, February 23, 2009, March 6, 2009, April 15,
2009, April 28, 2009, June 14, 2009, June 21, 2009, June 22, 2009, June 23, 2009, and
June 24, 2009. Other maintenance activity was conducted in the vicinity of plaintiff’s
incident by ODOT personnel on June 22, 2009 and June 23, 2009. There is no record
of ODOT maintenance activity between mileposts 98.06 and 97.86 on Interstate 70
during the period from June 24, 2009 to July 10, 2009.
       {¶ 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 debris 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 debris appeared on the roadway.
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 agents 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.      No evidence has been produced to establish
ODOT had any notice of the damage-causing debris condition or that the condition was
created as a result of maintenance activities.
      {¶ 6} 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, 788 N.E. 2d 1088, ¶8 citing
Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472
N.E. 2d 707. 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.
      {¶ 7} Evidence in the instant action tends to show plaintiff’s damage was
caused by an act of an unidentified third party, not ODOT.        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 conducts needs to be controlled. Federal Steel &
Wire Corp. v. Ruhlin Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However,
defendant may still bear liability if it can be established if some act or omission on the
part of ODOT was the proximate cause of plaintiff’s injury. 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.
       {¶ 8} “If any injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of the 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.
       {¶ 9} Plaintiff has failed to establish her damage was proximately caused by any
negligent act or omission on the part of ODOT. In fact, the sole cause of plaintiff’s injury
was the act of an unknown third party which did not involve ODOT. 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 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. Herman v. Ohio Dept. of Transp. (2006), 2006-
05730-AD.




                                 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




KIMBERLY E. CURTIS

      Plaintiff

      v.

OHIO DPT. OF TRANSPORTATION
        Defendant

         Case No. 2009-06443-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:

Kimberly E. Curtis                                Jolene M. Molitoris, Director
494 Westmoor Pl.                                  Department of Transportation
Columbus, Ohio 43204                              1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
10/20
Filed 11/5/09
Sent to S.C. reporter 2/25/10
