[Cite as Shutway v. Ohio Dept. of Transp., Dist. 11, 2010-Ohio-6198.]

                                       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




KAREN SHUTWAY

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 11

        Defendant

        Case No. 2010-04866-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Karen Shutway, filed this action against defendant, Department of
Transportation (ODOT), contending that the tire on her car was damaged as a
proximate cause of negligence on the part of ODOT personnel in maintaining a
hazardous condition on State Route 149 in Belmont County.                      Specifically, plaintiff
claimed the left rear tire on her car was punctured on February 22, 2010 by a dislodged
raised pavement marker (RPM or reflector) that was uprooted from the roadway surface
when ODOT conducted previous snow removal operations on State Route 149. Plaintiff
related, “[a]fter this incident, I noticed several others (RPMs) that were plucked out by
ODOT snow plow.” Plaintiff requested damage recovery in the amount of $79.13, the
cost of a replacement tire. 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 loose road reflector on State Route 149 prior
to plaintiff’s property damage occurrence.                Defendant denied receiving any calls or
complaints from any entity regarding a loose road reflector “prior to plaintiff’s incident.”
Defendant argued plaintiff failed to produce any evidence to establish the length of time
the RPM was dislodged from the roadway prior to her February 22, 2010 damage event.
Defendant explained the location of the reflector would correspond to “approximately
milepost 27.80 on SR 149 in Belmont County.”           Defendant suggested, “the loose
reflector existed in that location for only a relatively short amount of time before
plaintiff’s incident.”
        {¶ 3} Defendant contended plaintiff did not offer evidence to prove her property
damage was attributable to conduct on the part of ODOT personnel.               Defendant
acknowledged ODOT crews conducted various maintenance operations in the vicinity of
milepost 27.80 on seventeen occasions during the six-month period preceding February
22, 2010.       Defendant’s submitted maintenance records show ODOT personnel
performed “care for shrubs, plants, trees” in the vicinity of milepost 27.80 on the day of
plaintiff’s property damage event. Defendant stated “[i]f ODOT work crews noticed a
defect with the reflector . . . they would have immediately repaired it.” Defendant did not
provide any record of snow removal operations conducted by ODOT personnel on State
Route 149 during the winter season of 2009-2010.
        {¶ 4} Plaintiff filed a response acknowledging she has “no way of knowing if this
reflector was loose or even for how long.” Plaintiff again asserted the reflector that
damaged her tire was dislodged by ODOT crews conducting snow removal operations
on State Route 149.
        {¶ 5} 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 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.
      {¶ 6} 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. Additionally, defendant has the duty to exercise
reasonable care for the motoring public when conducting snow removal operations.
Andrews v. Ohio Department of Transportation (1998), 97-07277-AD.
      {¶ 7} Ordinarily in a claim involving roadway defects, plaintiff must prove 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. There is no proof defendant had actual notice or
constructive notice of the raised pavement marker despite the fact that ODOT crews
were in the area on February 22, 2010.
      {¶ 8} 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.      However, proof of notice of a dangerous condition is not
necessary when defendant’s own agents actively cause such condition. 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.               Evidence is
inconclusive whether or not the damage-causing pavement marker was originally
dislodged from the roadway by defendant’s personnel.
      {¶ 9} “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 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.
       {¶ 10} Plaintiff has not shown, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to her or that her property damage was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing reflector was connected to any conduct under the control of defendant, or that
there was any negligence on the part of defendant. Taylor v. Transportation Dept.
(1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-10909-AD;
Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD.              Consequently,
plaintiff’s claim is denied.
       {¶ 11} Finally, 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. Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD.
Therefore, defendant is not liable for any damage plaintiff may have suffered from the
dislodged reflector.



                               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




KAREN SHUTWAY

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 11

       Defendant

       Case No. 2010-04866-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:

Karen Shutway                                    Jolene M. Molitoris, Director
40300 Poland Farm Road                           Department of Transportation
Flushing, Ohio 43977                             1980 West Broad Street
                                                 Columbus, Ohio 43223
RDK/laa
6/30
Filed 8/17/10
Sent to S.C. reporter 12/10/10
