[Cite as Stratton v. Ohio Dept. of Transp., 2011-Ohio-5727.]



                                       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




JEREMIAH DOUGLAS STRATTON,                                     :   Case No. 2011-04576-AD

        Plaintiff,

        v.                                                     :   Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

        Defendant.                                             :   MEMORANDUM DECISION




        {¶ 1} Plaintiff, Jeremiah Stratton, filed this action against defendant, Department
of Transportation (ODOT), contending that his 1998 Honda Civic was damaged as a
proximate result of negligence on the part of ODOT in maintaining a road reflector on I-
270 in Franklin County. In his complaint, plaintiff provided a narrative description of his
damage incident noting that he was driving his car on December 2, 2009, at
approximately 7:15 a.m. when “a bus kicked up a road reflector lodging it in the driver’s
side front end against radiator while fracturing multiple places.” Plaintiff implied that the
damage to the automobile was proximately caused by negligence on the part of ODOT
in failing to maintain the roadway free of hazardous debris conditions. Plaintiff filed this
complaint seeking to recover $894.27, which represents the cost of automotive repairs
and reimbursement of the filing fee. The $25.00 filing fee was paid.
        {¶ 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 near milepost 42.80 on I-270 in Franklin County.
Defendant asserted plaintiff failed to establish the length of time the debris existed on
the roadway prior to his property-damage event. Defendant suggested, “that the debris
existed in that location for only a relatively short amount of time before plaintiff’s
incident.” Defendant contended plaintiff failed to establish the damage-causing debris
condition was attributable to any conduct on the part of ODOT. Plaintiff did not file a
response.
      {¶ 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.     However, proof of notice of a dangerous condition is not
necessary when defendant 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} Plaintiff has not provided any evidence to prove that ODOT had actual
notice of the loose reflector. Therefore, in order to recover plaintiff must offer proof of
defendant’s constructive notice of the condition or evidence to establish negligent
maintenance.
       {¶ 7} “[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, 47 O.O. 231, 105 N.E. 2d 429. “A finding of
constructive notice is a determination the court must make on the facts 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.
       {¶ 8} Plaintiff has not produced any evidence to indicate the length of time that
the road reflector was present on the roadway prior to the incident forming the basis of
this claim.   Additionally, 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 condition 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 dislodged reflector.
       {¶ 9} Plaintiff has not produced any evidence to infer that 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.
In addition, plaintiff has failed to provide sufficient evidence to prove that defendant
maintained a hazardous condition on the roadway which was the substantial or sole
cause of his property damage. or that defendant knew about the particular reflector
condition prior to December 2, 2009. Plaintiff has not submitted evidence to prove that
a negligent act or omission on the part of defendant caused the damage to his vehicle.
Prstojevic v. Dept. of Transp., Dist. 3, Ct. of Cl. No. 2009-08519-AD, 2010-Ohio-2186.
      {¶ 10} In his complaint, plaintiff acknowledged the debris plaintiff’s car struck was
displaced by a third party, another motorist. Defendant has also 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 conduct needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin
Const. Co. (1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769, Jordan v. Ohio Dept. of
Transp., Dist. 8, Ct. of Cl. No. 2010-01336-AD, 2010-Ohio-4583.
                               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




JEREMIAH DOUGLAS STRATTON,                           :   Case No. 2011-04576-AD

      Plaintiff,

      v.                                             :   Acting Clerk Daniel R. Borchert

OHIO DEPARTMENT OF TRANSPORTATION,

      Defendant.                                     :



                   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
                                                Acting Clerk




Entry cc:

Jeremiah Douglas Stratton                       Jerry Wray, Director
                                                Department of Transportation
                                                1980 West Broad Street
                                                Columbus, Ohio 43223
7/1
Filed 7/21/11
Sent to S.C. reporter 11/4/11
