[Cite as Franklin v. Dept. of Transp., 2011-Ohio-1113.]

                                       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




CAROLYN FRANKLIN

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-08811-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Carolyn Franklin, filed this action against defendant, Department
of Transportation (ODOT), contending her car was damaged as a proximate cause of
negligence on the part of ODOT in maintaining a bridge spanning Northfield Road
(State Route 8) in Cuyahoga County. In her complaint, plaintiff provided a description of
her damage incident noting: “I was driving Southbound on Northfield Road when a
piece of the bridge fell on the hood of my car it was a concrete piece of rock.”
According to plaintiff, the falling debris damaged both the hood and windshield of her
car. Plaintiff related, “I was able to get it (the damage-causing debris) because it stay
on the windshield” of her vehicle. Plaintiff did not provide any demonstrative evidence
depicting the damage-causing debris. Plaintiff recalled her described incident occurred
on June 4, 2010 at approximately 8:45 p.m. Plaintiff requested damages in the amount
of $937.54, the stated cost of repairing her automobile. No repair estimates were filed
with the complaint. The filing fee was paid.
        {¶ 2} Defendant conducted an investigation and determined the described
damage incident occurred “between mileposts 5.18 to 5.00 on SR 8 in Cuyahoga
County. Defendant contended, “ODOT denied receiving any prior calls or complaints
regarding debris falling from any bridge spanning State Route 8.”            Furthermore,
defendant related, “there is no evidence the debris actually came from the bridge.”
Plaintiff, in her complaint, wrote “a piece of the bridge fell on the hood of my car.”
Conversely, defendant contended “the evidence suggests the damage (to plaintiff’s car)
was not caused by debris from the bridge.” Defendant asserted, “[p]laintiff does not
identify the debris that fell onto her hood when she passed under the bridges on SR 8
before I-480.” In her complaint, plaintiff noted, “a concrete piece of rock” from the
bridge structure fell and struck the hood of her vehicle.       Defendant explained two
bridges spanning State Route 8 at milepost 5.08 and 5.06 were inspected on March 3,
2009; some fifteen months prior to the incident forming the basis of this claim.
Defendant advised the submitted inspection reports “mention a very small percentage of
declamations.” The submitted inspection reports in fact mention “minor declamations”
on the bridges as well as “cracks,” “spalls,” and “debris” on both bridges. Defendant
denied the falling piece of concrete that damaged plaintiff’s car emanated from any
bridge spanning State Route 8.
      {¶ 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 an 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.             The 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 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.
      {¶ 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 points to the conclusion that
plaintiff’s damage was proximately caused by negligent bridge maintenance.
      {¶ 7} This court has previously held ODOT liable for property damage resulting
from falling debris. Elsey v. Dept. of Transportation (1989), 89-05775-AD; Alfson .v.
Ohio Dept. of Transp., Ct. of Cl. No. 2010-03274-AD, 2010-Ohio-5220. Plaintiff has
proven, by a preponderance of the evidence, that she sustained property damage as a
result of defendant’s negligence regarding bridge maintenance.       Brickner v. ODOT
(1999), 99-10828-AD; Rini v. ODOT (1997), 97-05649-AD; McTear v. Dept. of Transp.,
Dist. 12, Ct. of Cl. No. 2008-09139-AD, 2008-Ohio-7118.
      {¶ 8} The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to
believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. In the instant action, the trier of fact
finds that the statements of plaintiff concerning the origin of the damage-causing debris
are persuasive. Alfson. Consequently, defendant is liable to plaintiff for the damage
claimed, $937.54, plus the $25.00 filing fee which may be reimbursed as compensable
costs pursuant to R.C. 2335.19. See Bailey v. Ohio Department of Rehabilitation and
Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.




                               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




CAROLYN FRANKLIN

      Plaintiff

      v.

DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-08811-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 plaintiff in the amount of $962.54, which includes the filing fee. Court costs are
assessed against defendant.




                                       DANIEL R. BORCHERT
                                       Deputy Clerk

Entry cc:

Carolyn Franklin                       Jolene M. Molitoris, Director
4509 Longleaf                          Department of Transportation
Warrensville Hts., Ohio 44128          1980 West Broad Street
                                       Columbus, Ohio 43223
RDK/laa
12/15
Filed 1/7/11
Sent to S.C. reporter 3/4/11
