[Cite as Greeno v. Ohio Dept. of Transp., 2012-Ohio-5274.]




                                                        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




DAVID L. GREENO

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2012-02291-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, David L. Greeno, filed this action against defendant, Ohio
Department of Transportation (“ODOT”), contending that his 2000 Chevy S10 sustained
suspension damage as the result of driving over the Scioto Bridge on U.S. 22 west of
Circleville, Ohio for several weeks. Plaintiff seeks damages in the amount of $803.27
for suspension parts and labor. The $25.00 filing fee was paid.
        {¶2}    Defendant denied liability based on the contention that plaintiff knew the
condition of the roadway in question but continued to use it, at his own risk. Defendant
pointed out that it only received two complaints about the roadway in question,
milemarker 17.01 on U.S. 22 in Pickaway County. Both complaints were from plaintiff.
No other complaints were received within a six-month period even though the average
daily traffic count was “between 9,920 and 10,610 vehicles.” Defendant related this
stretch of highways was inspected by ODOT’s Pickaway County Manager who
determined it was in acceptable condition. Defendant acknowledges that the condition
of this highway was a reason for concern and a plan had been formulated to repair the
highway based on a planned time table. Finally, the defendant asserts that plaintiff was
well aware of the condition of the roadway yet he drove back and forth utilizing the
highway on a daily basis for weeks. Accordingly, defendant contends plaintiff assumed
the risk of possible damage to his vehicle. Therefore, defendant argues plaintiff’s claim
should be denied.
      {¶3}   Plaintiff did not file a response.
      {¶4}   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-2573,488 N.E. 2d 1088, ¶8 citing Menifee
v. Ohio Welding Products, Inc., 15 Ohio St. 3d 75, 77, 472 N.E. 2d 707 (1984).
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., 145 Ohio St. 198, 61 N.E. 2d 198 (1945), approved and
followed.
      {¶5}   Defendant has the duty to maintain its highways in a reasonably safe
condition for the motoring public. Knickel v. Ohio Department of Transportation, 49
Ohio App. 2d 335, 361 N.E. 2d 486 (10th Dist. 1976). However, defendant is not an
insurer of the safety of its highways. See Kniskern v. Township of Somerford, 112 Ohio
App. 3d 189, 678 N.E. 2d 273 (10th Dist. 1996); Rhodus v. Ohio Dept. of Transp., 67
Ohio App. 3d 723, 588 N.E. 2d 864 (10th Dist. 1990).
Case No. 2006-03532-AD                    -3-               MEMORANDUM DECISION



       {¶6}   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 conditions alleged to have caused the accident.
McClellan v. ODOT, 34 Ohio App. 3d 247, 517 N.E. 2d 1388 (10th Dist. 1986).
Defendant is only liable for roadway conditions of which it has notice, but fails to
reasonably correct. Bussard v. Dept. of Transp., 31 Ohio Misc. 2d 1, 507 N.E. 2d 1179
(Ct. of Cl. 1986).
       {¶7}   It is well established that “[t]he state cannot be sued for its legislative or
judicial functions or the exercise of an executive or planning function involving the
making of a basic policy decision which is characterized by the exercise of a high
degree of official judgment or discretion.” Reynolds v. State ,14 Ohio St. 3d 68, 70, 471
N.E. 2d 776 (1984); Pottenger v. Ohio Dept. of Transp, 10th Dist. No. 88AP-832(Dec. 7,
1989). ODOT’s decision as to when to repair a particular roadway, or how to best utilize
its resources is clearly a policy decision of such nature.      The court concludes that
ODOT is entitled to discretionary immunity for its decisions surrounding the repair of the
roadway in question especially since ODOT’s Pickaway County Manager determined
the highway condition was acceptable.
       {¶8}   Plaintiff has also presented a claim in which he appears to allege the
disrepair of the roadway created a nuisance condition. To constitute a nuisance, the
thing or act complained of must either cause injury to the property of another, obstruct
the reasonable use or enjoyment of such property, or cause physical discomfort to such
person. Dorrow v. Kendrick, 30 Ohio Misc. 2d 40, 508 N.E. 2d 684 (Ct. of Cl. 1987).
       {¶9}   “[A] civil action based upon the maintenance of a qualified nuisance is
essentially an action in tort for the negligent maintenance of a condition, which, of itself,
creates an unreasonable risk of harm. ultimately resulting in injury. The dangerous
condition constitutes the nuisance.       The action for damages is predicated upon
carelessly or negligently allowing such condition to exist.”         Rothfuss v. Hamilton
Masonic Temple Co., 34 Ohio St. 2d 176, 180, 297 N.E. 2d 104 (1973). Under a claim
of qualified nuisance, the allegations of nuisance merge to become a negligence action.
Allen Freight Lines, Inc. v. Consol. Rail Corp., 64 Ohio St. 3d 274, 595 N.E. 2d 855
(1992).    Plaintiff has failed to prove, by a preponderance of the evidence, that the
roadway condition created a nuisance. Plaintiff has not submitted conclusive evidence
to prove a negligent act or omission on the part of defendant caused the damage to his
truck. Hall v. Dept. of Transportation, 99-12863-AD (2000). The evidence presented
does not prove any nuisance condition existed.
         {¶10} Furthermore, evidence presented by defendant reveals the roadway was
inspected by ODOT’s Pickaway County Manager who found the condition of the
roadway acceptable.
         {¶11} The common law of Ohio imposes a duty of reasonable care upon
motorists that includes the responsibility to observe the environment in which one is
driving. See e.g., Hubner v. Sigall, 47 Ohio App. 3d 15, 17, 546 N.E. 2d 1337 (10th Dist.
1988).
         {¶12} Implied assumption of the risk, also known as secondary assumption of
the risk, “is defined as a plaintiff’s consent to or acquiescence in an appreciated, known,
or obvious risk to plaintiff’s safety.” Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-
905, 2010-Ohio-1390, ¶19. “Implied assumption of risk does not relieve a defendant of
Case No. 2006-03532-AD                   -5-               MEMORANDUM DECISION



his duty to the plaintiff.” Wolfe, citing Collier v. Northland Swim Club, 35 Ohio App. 3d
35, 518 N.E. 2d 1226 (10th Dist. 1987), paragraph two of the syllabus.         However,
because plaintiff knew of the danger involved and acquiesced to it, the plaintiff’s claim
may be barred. Anderson v. Ceccaddi, 6 Ohio St. 3d 110, 3 N.E. 2d 780 (1983).
      {¶13} Plaintiff failed to prove that his property damage was connected to any
conduct under the control of defendant, or that defendant was negligent in maintaining
the roadway area, or that there was any actionable negligence on the part of defendant.
Taylor v. Transportation Dept., 97-10898-AD (1998); Weininger v. Department of
Transportation, 99-10909-AD (1999); Witherell v. Ohio Dept. of Transportation, 2000-
04758-AD (2000). Consequently, plaintiff’s claim is denied.
                               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




DAVID L. GREENO

    Plaintiff

    v.

OHIO DEPARTMENT OF TRANSPORTATION

    Defendant
Case No. 2006-03532-AD                    -7-               MEMORANDUM DECISION



Case No. 2012-02291-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:

David L. Greeno                           Jerry Wray, Director
1140 Mill Road                                   Department of Transportation
Circleville, Ohio 43113                          1980 West Broad Street
                                                 Columbus, Ohio 43223
DRB/laa
Filed 7/5/12
sent to S.C. Reporter 11/14/12
